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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


Digitized  by  the  Internet  Archive 

in  2008  with  funding  from 

IVIicrosoft  Corporation 


http://www.archive.org/details/compilationofwarOOmohu 


A  COMPILATION 


OF 


WAREHOUSE   LAWS 


AND  DECISIONS 


CONTAINING  THE  STATUTES  OF  EACH  OF  THE  STATES  AND 
TERRITORIES      PERTAINING     TO     WAREHOUSEMEN,    TO- 
GETHER   WITH    A    DIGEST    OF    THE    DECISIONS    OF 
THE     STATE    AND  FEDERAL    COURTS,  IN     ALL 
CASES    AFFECTING    WAREHOUSEMEN. 
WITH  AN   ANALYTICAL  INDEX. 


BARRY    MOHUN,   LL.  M. 

OF  THE  BAR  OF  THE  DISTRICT  OF  COLUMBIA  AND  OF  THE  STATE  OF  NEW  YORK. 


THE  BANKS  LAW  PUBLISHING  COMPANY 

21  Murray  St.,  New  York. 
1901. 


Copyright,  1904. 
By  AMERICAN  WAREHOUSEMEN'S  ASSOCIATION. 


T 


The  compilation  of  this  volume  was  undertaken  by  the  Ameri- 
can Warehousemen's  Association,  on  the  suggestion  of  the 
Chairman  of  its  Committee  on  Laws  and  Legislation,  as  an 
aid  to  that  Committee  in  the  formulation  of  such  a  code  of 
laws  for  the  government  of  the  warehouse  business  as  might 
be  offered  to  the  several  legislatures  of  this  country  with  a  fair 
prospect  of  general  adoption.  When  the  work  was  completed 
it  proved  so  valuable  that  it  was  determined  to  issue  it  in  per- 
manent form  to  the  legal  profession  and  to  the  warehousemen 
of  this  country  as  an  authoritative  statement  of  the  present 
status  of  warehouse  jurisprudence.  The  Association  takes  this 
occasion  to  place  on  record  its  high  appreciation  of  the  disin- 
terested and  untiring  efforts  of  the  Chairman  of  its  Committee 
on  Laws  and  Legislation,  Mr.  Albert  M.  Read,  of  Washington, 
D.  C,  in  making  the  issue  of  this  volume  possible,  and  to  thank 
the  other  members  of  that  Committee,  Messrs.  W.  H.  Gibson, 
of  New  York  City,  D.  E.  Knowlton,  of  Buffalo,  N.  Y.,  W.  G. 
Coldeway,  of  Cincinnati,  Ohio,  R.  M.  Winans,  of  New  York  City, 
and  Philip  Godley,  of  Philadelphia,  Pa.,  for  their  hearty  co- 
operation in  the  work. 

American  Warehousemen's  Association 
BY  William  T.  Robinson,  President, 
AND  Walter  C.  Reid,  Secretary. 


735445 


PREFACE. 


The  arrangement  of  this  volume  being  very  simple,  I  feel 
that  few,  if  any,  words  of  explanation  are  required. 

It  may,  however,  be  well  to  outline  the  uniform  system  of 
classification  of  decisions  followed  in  each  of  the  chapters. 
Each  state  is  allotted  one  chapter,  the  laws  being  given  first, 
the  decisions  afterward;  the  latter  are  divided  into  a  series  of 
groups,  each  represented  by  a  letter  of  the  alphabet,  and  ar- 
ranged in,  what  I  believe  to  be,  a  logical  sequence. 

The  subjects  of  the  decisions  found  under  each  of  the  letters, 
are  as  follows: 

A. 

Bailment;  General  principles;  Kinds  of;  Difference  between 
a  bailment  and  a  sale;  Statute  of  limitations. 

6. 

Warehousemen,  their  duties,  rights  and  liabilities  in  general; 
Public  and  private  warehousemen;  Ordinary  care;  When  ha- 
bility  begins,  when  it  terminates;  Disputed  ownership;  Bailor's 
title;  Conversion,  what  constitutes;  Burden  of  proof;  Liability 
of  directors  and  stockholders;  Partnership  agreements;  Acts  of 
State  Boards  and  Warehouse  Commissions;  Commissions;  Pro- 
cedure; Evidence;  Pleading. 

C. 

Safe  deposit  boxes. 

D. 

Expressmen,  transactions  with  warehousemen. 

E. 

Factors,  transactions  with  warehousemen. 


vi  preface!. 

F. 

Carriers,  transactions  with  warehousemen  and  their  liability 
as  warehousemen. 

G. 

Government  bonded  warehouses. 

H. 

Storage  charges;  Lien;  Sale;  Contracts  of  storage  construed. 

I. 

Segregation  and  commingling  of  stored  property;  Substitu- 
tion of  other  property. 

E. 

Legal  process  against  stored  property. 

L. 

Replevin;  Trover;  Detinue. 

M. 

Property  pledged  with  warehouseman. 

N. 

Loss  or  damage  to  stored  property  by  fire,  water,  negligence, 
misdelivery,  accident,  theft,  war,  act  of  God;  Procedure;  Evi- 
dence; Pleading. 

0. 

Measure  of  damages  for  loss,  or  damage  to  goods. 

P. 

Insurance  ;  Insurable  interest;  Warranty  of  "fire-proof," 
"frost-proof,"  etc.;  Contracts  to  keep  insured. 

Q. 

Warehouse  receipts;  Definition;  Requisites;  Interpretation; 
When  title  passes ;  Estoppel  by ;  Receipts  of  private  warehouse- 


PREFACE.  Vli 


men;  Exemptions  in ;  Guaranty;  Negotiability;  What  constitutes 
a  bona  fide  holder;  As  collateral;  Delivery  of  property  without 
surrender  of  receipt;  Special  and  irregular  receipts;  Bogus  and 
forged  receipts;  Procedure;  Evidence;  Pleading. 

R. 

Bills  of  lading;  Definition;  Liabilty  upon;  Exemptions  in; 
Negotiability;  As  collateral;  Bona  fide  holder;  Bogus  bills  of 
lading;  Procedure;  Evidence;  Pleading. 

S. 
Customs  among  warehousemen  as  affecting  their  rights  and 
Uabilities. 

T. 

Liability  of  warehousemen  for  injuries  to  employees;  Doc- 
trine of  fellow  servants;  Fraud  and  crimes  of  warehousemen. 

U. 

Constitutionality  of  statutes  pertaining  to  warehousemen; 
Statutes  authorizing  the  taking  of  land,  prescribing  maximum 
rates  for  storage,  etc. 

If  this  volume  assists  in  the  dissemination  of  legal  knowledge 
concerning  the  important  subject  of  warehousemen,  their  rights 
and  liabilities,  I  shall  feel  amply  repaid. 

My  sincere  thanks  are  due  Mr.  Albert  M.  Read,  Vice  Presi- 
dent of  the  American  Warehousemen's  Association,  and  Chair- 
man of  its  Committee  on  Laws  and  Legislation,  for  his  untiring 
efforts  which  have  made  possible  the  publication  of  this  volume. 

Barry  Mohun. 
Washington,  D.  C. 

September  12,  1903. 


CONTENTS. 


CHAPTER  I. 
Alabama.  page 

LAWS 1 

DECISIONS 7 

CHAPTER  n. 
Arizona. 

LAWS 21 

DECISIONS 24 

CHAPTER  III. 
Arkansas. 

LAWS 25 

DECISIONS 30 

CHAPTER  IV. 
California. 

laws ^^ 

decisions 47 

CHAPTER  V. 
Colorado. 

LAWS ^3 

DECISIONS 69 

CHAPTER  VI. 
Connecticut, 

LAWS *  4 

DECISIONS *° 

ix 


X  CONTENTS. 

CHAPTER  VII. 
Delaware.                                                                            page 
LAWS ^'^ 

DECISIONS 85 

CHAPTER  MIL 
District  of  Columbia. 

LAWS 86 

decisions 88 

CHAPTER  IX. 

Florida. 

LAWS 92 

DECISIONS 95 

CHAPTER  X.      . 

Georgia. 

laws 96 

decisions 103 

CHAPTER  XL 

Idaho. 

LAWS 124 

DECISIONS 125 

CHAPTER  XII. 
Illinois. 

LAWS 126 

DECISIONS 159 

CHAPTER  XIII. 
Indiana. 

LAWS 184 

DECISIONS 199 

CHAPTER  XIV. 

Indian  Territory. 

LAWS 210 

DECISIONS 210 


CONTENTS.  ^1 

CHAPTER  XV. 

T        .  PAGE 

Iowa. 

.  211 

LAWS 

21Q 
DECISIONS 

CHAPTER  XVI. 

Kansas. 

227 

LAWS 

DECISIONS 

CHAPTER  XVII. 
Kentucky. 

LAWS ^^^ 

272 
decisions 

CHAPTER  XVIII. 

Louisiana. 

LAWS 286 

decisions ^^'^ 

CHAPTER  XIX. 

Maine. 

LAWS ^^^ 

DECISIONS 

CHAPTER  XX. 

Maryland. 

LAWS 315 

Q27 
decisions 

CHAPTER  XXI. 

Massachusetts. 

332 

LAWS 

340 

DECISIONS 

CHAPTER  XXII. 

Michigan. 

352 

LAWS 

371 

DECISIONS ,  ,  .  . •  " 


Xll  CONTENTS. 

CHAPTER  XXIII. 
Minnesota.  page 

LAWS 375 

DECISIONS 432 

CHAPTER  XXIV. 

Mississippi. 

LAWS 448 

decisions 450 

CHAPTER  XXV. 

Missouri. 

LAWS 454 

DECISIONS 491 

CHAPTER  XXVI. 
Montana. 

LAWS 501 

DECISIONS 504 

CHAPTER  XXVII. 

Nebraska. 

LAWS 505 

DECISIONS 536 

CHAPTER  XXVIII. 

Nevada. 

LAWS 540 

DECISIONS 540 

CHAPTER  XXIX. 

New  Hampshire. 

LAWS 541 

DECISIONS 542 

CHAPTER  XXX. 

New  Jersey. 

LAWS 543 

DECISIONS 548 


CONTENTS.  Xm 

CHAPTER  XXXL 
New  Mexico.  page 

LAWS 550 

decisions 550 

CHAPTER  XXXn. 
New  York. 

LAWS 551 

DECISIONS 565 

CHAPTER  XXXni. 
North  Carolina. 

LAWS 602 

DECISIONS 609 

CHAPTER  XXXIV. 

North  Dakota. 

LAWS 613 

DECISIONS 624 

CHAPTER  XXXV. 
Ohio. 

LAWS 628 

DECISIONS 646 

CHAPTER  XXXVI. 
Oklahoma. 

LAWS 656 

DECISIONS 675 

CHAPTER  XXXVII. 
Oregon. 

LAWS 676 

DECISIONS 682 

CHAPTER  XXXVIII. 
Pennsylvania. 

LAWS 688 

DECISIONS 696 


Xiv  CONTENTS. 

CHAPTER  XXXIX. 
Rhode  Island.  page 

LAWS 700 

DECISIONS 712 

CHAPTER  XL. 
South  Carolina. 

LAWS 715 

DECISIONS 726 

CHAPTER  XLI. 

South  Dakota. 

LAWS ' 731 

DECISIONS 749 

CHAPTER  XLII. 

Tennessee. 

LAWS 751 

DECISIONS 753 

CHAPTER  XLIIL 

Texas . 

LAWS 761 

DECISIONS 766 

CHAPTER  XLIV. 
Utah. 

LAWS 772 

DECISIONS 772 

CHAPTER  XLV. 
Vermont. 

LAWS 773 

DECISIONS 775 

CHAPTER  XLVI. 
Virginia. 

LAWS 778 

DECISIONS 794 


CONTKNIS.  XV 

CHAPTER  XLVII. 

Washington.  p^*^^ 

LAWS 797 

DECISIONS °*^' 

CHAITKR  XLVIII. 
West  Virginia. 

LAWS 808 

decisions °09 

CHAPTER  XLIX. 
Wisconsin. 

LAWS 811 

decisions 825 

CHAPTER  L. 
Wyoming. 

LAWS ^'^-' 

decisions 837 

Analytical  Index 839 


CHAPTER  I. 
ALABAMA. 

LAWS  PERTAINING  TO  WAREHOUSEMEN. 

Warehousemen  or  commou  carriers  give  receipt  or  bill  of 
lading— Contents : 

Warehousemen  or  common  carriers,  receiving  things  or  prop- 
erty of  any  kind  for  safe-keeping,  or  for  carriage,  for  hire  or 
reward,  must,  on  the  deUvery  to  them  of  such  things  or  prop- 
erty, give  the  person  from  whom  received  a  receipt  or  bill  of 
lading,  stating  the  order  or  condition  in  which  such  things  or 
property  may  be,  and  if  cotton  in  bales  is  received,  stating  ex- 
pressly the  condition  of  the  bagging,  ropes,  or  ties,  and  of  the 
cotton,  whether  dry,  damp,  wet  or  very  wet ;  and  such  warehouse- 
man or  common  carrier  is  bound  to  deliver  in  like  order  and 
condition  as  when  received  ;  and  if  such  receipt  or  bill  of  lading 
be  not  given,  such  things  or  property  must  be  deemed  and  taken 
to  have  been  in  good  order  or  condition  at  the  time  of  delivery 
to  such  warehouseman  or  carrier,  and  he  is  bound  to  deliver 
in  like  good  order  and  condition;  and  the  warehouseman  or 
carrier,  neglecting  or  failing  to  give  such  receipt  or  bill  of  lad- 
ing, is  liable  for  all  loss  or  damages  the  owner  of  such  things 
or  property  may  sustain  in  consequence  of  such  neglect  or  fail- 
ure; but  nothing  in  this  section  contained  must  be  construed 
as  affecting  the  common-law  liability  of  a  warehouseman  or  of 
a  common  carrier  for  an  injury  to  or  for  the  loss  of  such  things 
or  property.     Code,  Ala.  1896,  sec.  4218. 

Receipt  or  bill  of  lading  ;  when  not  to  be  given  : 

A  warehouseman,  common  carrier,  or  wharfinger,  or  other 
person  engaged  in  the  business  of  storage,  carriage,  or  of  keep- 
ing for  shipment,  or  of  forwarding  things  or  property,  must  not 
give  a  receipt  or  bill  of  lading  for  the  things  or  property  for 
storage,  for  carriage,  or  for  keeping  for  shipment,  or  for  for- 
^  1  1 


2  ALABAMA    LAWS. 

warding,  unless  such  things  or  property  have  been  actually  de- 
livered to  him,  or  placed  under  his  control;  and  a  second  receipt 
or  bill  of  lading  must  not  be  issued  or  given,  the  original  being 
outstanding,  without  writing  across  the  face  thereof  the  word 
"duplicate."     /f/.  sec.  4219. 

Delivery  to  cottou-couipress : 

A  delivery  of  cotton  at  or  to  a  compress  for  the  purpose  of 
being  compressed,  at  the  instance,  or  in  the  usual  course  of 
business  of  a  warehouseman,  common  carrier,  wharfinger,  or 
other  person  engaged  in  the  business  of  storage,  or  of  carriage, 
or  of  keeping  for  shipment,  ui'  of  forwarding,  may  be  taken 
and  deemed  as  an  actual  delivery  to  such  warehousemen,  car- 
rier, wharfinger,  or  other  person,  and  therefor  a  receipt  or  bill 
of  lading  may  be  issued  or  given.     Id.  sec.  4220. 

Sale,  etc.,  by  warehouseman,  carrier,  or  wharfinger : 

A  warehouseman,  common  carrier,  wharfinger,  or  other  per- 
son engaged  in  the  business  of  storage,  carriage,  or  of  keeping 
for  shipment,  or  of  forwarding  things  or  property,  must  not, 
otherwise  than  is  authorized  by  la^^^  or  by  the  contract  of  de- 
livery to  them,  make  sale  of  things  or  property  intrusted  to 
them;  nor,  without  the  assent  in  Avriting  of  the  person  to  whom 
they  may  have  given  a  receipt  or  bill  of  lading,  or  of  the  legal 
holder  of  such  receipt  or  bill  of  lading,  encumber  or  transfer 
the  same;  nor  must  they  otherwise  than  as  may  be  authorized 
by  the  contract  of  delivery  to  them,  part  with  the  control  or 
possession  of  such  things  or  property,  without  the  assent  in 
writing  of  the  person  to  whom  they  may  have  given  a  receipt, 
or  bill  of  lading,  or  of  the  legal  holder  of  such  receipt  or  bill  of 

lading.     Id.  sec.  4221. 

Above  section  construed : 

Transferee  must  be  the  legal  holder  of  the  receipt  and  in  the 
manner  above  prescribed.  Baher  v.  Malone  &  Sons,  126  Ala. 
510;  Lehman  v.  Pritchett,  84  Ala.  512;  Ala.  State  Bank  v.  Barnes, 
82  Ala.  607. 

Warehouse  receipt  nej^otiable : 

The  receipt  of  a  warehouseman,  on  which  the  words  ''not 


ALABAMA.  O 

negotiable"  are  not  plainly  written  or  stamped,  may  be  trans- 
ferred by  the  indorsement  thereof,  and  any  person  to  whom 
the  same  is  transferred,  must  be  deemed  and  taken  to  be  the 
owner  of  the  things  or  property  therein  specified,  so  far  as  to 
give  validity  to  any  pledge,  lien  or  transfer  made  or  created 
by  such  person;  l3ut  this  section  nmst  not  be  so  construed  as 
to  affect  or  impair  the  lien  of  a  landlord  on  such  things  or  prop- 
erty for  rent  or  advances,  or  to  affect  or  imi)air  any  lien  thereon 
created  by  contract,  of  which  notice  is  given  by  registration  in 
the  mode  prescribed  by  law;  and  unless  the  words  ''not  nego- 
tiable" be  plainly  written  or  stamped  on  the  receipt,  the  ware- 
houseman nmst  not  deliver  the  things  or  property  therein  speci- 
fied except  on  the  delivery  and  cancellation  of  the  receipt;  or 
in  case  of  partial  delivery,  without  an  indorsement  thereon  of 
such  partial  delivery;  in  the  event  of  the  loss  or  destruction  of 
such  receipt,  the  warehouseman,  not  having  notice  of  the  trans- 
fer thereof  by  indorsement,  may  make  delivery  of  the  things 
or  property  to  the  rightful  owner  thereof;  if  the  things  or  prop- 
erty, or  any  part  thereof,  be  claimed  or  taken  from  the  custody 
or  possession  of  the  warehouseman  under  legal  process,  the  sur- 
render thereof  may  be  made  without  the  delivery  or  cancella- 
tion of  such  receipt,  or  without  indorsement  thereon.  Id. 
sec.  4222. 

False  or  second  receipts,  or  delivery  without  cancellation, 
or  indorsement  of  partial  delivery  : 

If  any  common  carrier,  not  having  received  things  or  prop- 
erty for  carriage,  shall  give  or  issue  a  bill  of  lading,  or  receipt, 
as  if  such  things  or  property  had  been  received,  or  any  ware- 
houseman, or  wharfinger,  or  person  engaged  in  the  business  of 
storage,  or  keeping  for  shipment,  or  forwarding,  shall  issue  a 
receipt  for  things  or  property,  not  having  leceived  them;  or  if 
any  such  parties  shall  give  or  issue  a  second  bill  of  lading,  or 
receipt,  the  original  being  outstanding,  not  expressing  in  such 
second  bill  of  lading  or  receipt  that  it  is  a  duplicate,  or  shall 
surrender  such  things  or  property  without  receiving  and  can- 
celling the  bill  of  lading  or  receipt  issued  therefor,  or  make  par- 
tial delivery  without  indoising  such  partial  delivery  on  such 
bill  of  lading  or  receipt,  except  as  provided  in  the  preceding 


4  ALABAMA    LAWS. 

section,  such  carrier,  waieliouseiuaii,  wharfinger,  or  person  is 
Hable  to  any  person  injured  thereby  for  all  damages,  immediate 
or  consequential,  therefrom  resulting.     /(/.  sec.  4223. 

How  common  carrier  absolved  from  liability  as  insurer  ou 
arrival  of  freight  and  deposit  iu  warehouse,  couditious,  etc. : 

A  common  carrier,  if  the  place  of  destination  of  freight  is  a 
city  or  town  having  two  thousand  inhabitants,  or  more,  and 
a  daily  mail,  is  not  relieved  from  liability  as  a  common  carrier 
by  reason  of  a  deposit  or  storage  of  freight  in  a  depot  or  ware- 
house, unless  within  twenty-four  hours  after  the  arrival  of  such 
freight,  notice  thereof  is  given  the  consignee,  personally  or 
through  the  mail;  and  if  notice  is  given  through  the  mail,  the 
postage  must,  by  the  consignee,  be  refunded  to  the  carrier. 
Id.  sec.  4224. 

Sale  of  perishable  freight  to  pay  charges  : 

When  any  fruit,  vegetables,  fresh  meat,  oysters,  eggs,  or 
fish,  or  other  property  of  so  perishable  a  nature  as  to  be  in 
danger  of  great  depreciation,  has  been  transported  by  a  com- 
mon carrier  to  the  place  of  destination,  and  remains  unclaimed 
for  one  day  after  its  arrival,  or  if  the  consignee  resides,  or  is 
present  at  the  place  of  destination,  for  one  day  after  personal 
notice  in  writing  to  him,  or  his  agent,  of  the  arrival  of  the 
freight,  and  the  amount  of  charges  due  thereon,  the  same  may 
be  sold  by  the  carrier  or  his  agent  at  public  outcry  to  the  high- 
est bidder  for  cash,  at  some  public  place  at  the  point  of  destina- 
tion, on  one  day's  notice,  indicating  the  nature  of  the  package, 
the  consignee  and  the  time  and  place  of  sale,  by  publication 
in  some  newspaper  published  at  the  place  of  destination,  or, 
if  none  is  published  thereat,  then  by  posting  the  notice  at  the 
office  or  place  of  business  of  the  carrier.     Id.  sec.  4225. 

Sale  of  other  freight  to  pay  charges : 

When  any  other  freight  than  that  mentioned  in  the  preced- 
ing section  remains  unclaimed  for  sixty  days  after  its  arrival 
at  the  place  of  destination,  the  same  may  be  sold  by  the  carrier 
or  his  agent  at  public  outcry  to  the  highest  bidder  for  cash,  at 
some  public  place  within  the  state  of  Alabama,  after  notice 


ALA  I'.  AM  A.  O 

indicating  the  nature  of  tlie  package,  the  consignee  and  the 
time  and  place  of  sale,  has  been  given  for  three  weeks  by  pub- 
lication once  a  week,  in  some  newspaper  published  at  the  place 
of  sale,  or  if  no  such  paper  is  there  published,  by  posting  the 
notice  at  three  public  places  therein;  but  before  any  sale  can 
be  made  under  this  section,  the  carrier  must,  before  giving 
notice  of  the  sale,  demand  payment  of  the  charges  due  thereon 
from  the  owner  or  consignee,  if  either  of  them  resides  at  the 
place  of  destination;  but  if  neither  of  them  resides  at  such 
place,  failure  to  make  such  demand  shall  not  prevent  the  sale; 
but  notice  of  such  sale  shall  be  given  the  consignor,  when 
known,  by  mail.  Id.  sec.  4226,  as  amended  by  act  of  Febru- 
ary 15,  1901. 

Insurance  ;  sale ;  proceeds : 

The  common  carrier  may  insure  the  freight,  at  the  expense 
of  the  owner,  from  the  date  of  its  arrival  to  the  sale  above  au- 
thorized; and  the  proceeds  of  any  sale  made  under  the  last 
two  sections  shall  be  applied  to  the  payment  of  freight,  in- 
surance, and  all  charges  incident  to  storage  and  sale,  and  the 
residue,  if  any,  shall  be  paid  over  to  the  owner  or  consignee. 
Code,  Ala.  1896,  sec.  4227. 

The  three  preceding  sections  applicable  to  warehousemen : 

The  provisions  of  the  three  preceding  sections  apply  to  ware- 
housemen to  whom  freight  is  delivered  by  a  common  carrier. 
Id.  sec.  4228. 

Concealing  cotton  or  changing  marks  : 

Any  person,  who  conceals  cotton  delivered  to  himself  or 
another  for  sale  or  storage,  or  changes  or  mutilates  the  marks 
or  brands  thereof  for  the  purpose  of  hindering  the  owner  or 
person  having  a  lien  thereon  from  recovering  it,  and  any  ware- 
houseman who  permits  such  conduct,  shall  be  liable  to  the 
owner  or  lienor  for  all  damages,  immediate  or  remote,  by  him 
sustained;  and  any  warehouseman  with  whom  such  cotton  has 
been  stored,  who  has  information  which  would  lead  to  the  dis- 
covery thereof,  and  refuses,  on  application,  to  impart  the  same 
to  the  owner  or  lienor,  is  liable  to  him  for  the  value  of  the  cot- 
ton.    Id.  sec.  4229. 


6  ALABAMA    I-AWS. 

Contracts  in  writing  assignable  hy  indorsement : 

All  bonds,  contracts  and  writings  for  tlic  payment  of  money 
or  other  thing,  or  the  performance  of  any  act  or  duty,  are  as- 
signable by  indorsement  so  as  to  authorize  an  action  thereon 
by  each  successive  indorsee.     Id.  sec.  876. 

Above  section  constrned ;  held  to  apply  to  warehouse  re- 
ceipts : 

Lehman  v.  Marshall,  47  Ala.  362;  Allen,  Bethune  &  Co.  v. 
Maury  ^  Co.,  66  Ala.  10  ;  Ala.  State  Bank  v.  Barnes,  82  Ala. 
607;  Jemison  et  al.  v.  Birmingham  &  A.  R.  R.  Co.,  125  Ala.  378. 


ALA  1'.  AM  A.  7 

DECISIONS  AFFECTING  WAREHOUSEMEN. 

A. 

Bailment  and  sale — What  constitutes  a  sale — Delivery  of  ware- 
house receipts — Right  to  reject  all  inferior  goods. 

Where  there  was  a  dchvery  of  the  warehouse  receipts  for 
cottoia,  to  the  intending  purchaser,  and  the  price  for  the  same 
paid  to  the  vendor,  out  of  such  price  there  being  deducted  five 
dollars  per  bale  on  account  of  the  reserved  right  of  the  pur- 
chaser to  re  weigh  and  inspect  the  cotton  and  to  reject  sand- 
packed  or  other  of  an  inferior  quality,  it  was  held,  that  there 
was  a  sale  of  the  cotton  to  the  purchaser;  that  the  title  had 
vested  in  him  subject  to  be  divested  of  so  much  of  the  cotton 
as  was  of  inferior  quality.  Allen,  Bethune  &  Co.  v.  Maury  & 
Co.,  66  Ala.  10. 

B. 

Ordinary  care. 

Warehousemen  are  bailees  for  hire  and  it  is  their  duty  to 
bring,  to  the  business  in  which  they  are  employed,  reasonable 
skill  and  diligence.  They  are  answerable  only  for  ordinary 
negligence.  Seals  v.  Edmonson,  71  Ala.  509;  Hatchett  v.  Gib- 
son, 13  Ala.  587;  Ala.  &  Tenn.  R.  R.  R.  Co.  v.  Kidd,  35  Ala. 
209;  Kennedy  Bros.  v.  Mobile  &  G.  R.  R.  Co.,  74  Ala.  430; 
Moore  v.  The  Mayor,  etc.,  1  Stern,  284;  Mobile  &  G.  R.  R.  Co. 
V.  Prewitt,  46  Ala.  63;  Jones  v.  Hatchett,  14  Ala.  743;  Davis  & 
Son  V.  Hurt,  114  Ala.  146. 

Same — Want  of  ordinary  care — Effect. 

A  want  of  ordinary  care  in  one  particular,  on  the  part  of  a 
warehouseman,  does  not  render  him  responsible  for  a  loss  oc- 
casioned by  other  causes  not  connected  with  that  particular. 
Gibson  v.  Hatchet,  24  Ala.  201. 

Same — Care  which  xcarehouseman  bestows  upon  his  own  prop- 
erty no  criterion — Evidence. 

The  care  which  a  warehouseman  may  bestow  upon  his  own 
property,  or  the  lack  of  such  care,  is  a  matter  about  which  he 
must  exercise  his  own  discretion  so  long  as  he  works  no  injury 


8 


ALABAMA    DKnslONS. 


to  others,  or  their  ijropert3\  The  measure  of  his  duty  is  to  be- 
stow reasonable  skill  and  ordinary  diligence  in  regard  to  the 
property  intrusted  to  his  custody — doing  all  that  men  of  ordi- 
nary prudence  would  do  under  like  circumstances,  without  re- 
gard to  the  care  he  may  exert  for  liimself.  In  an  action 
against  a  warehouseman  for  the  loss  of  cotton,  it  was  shown 
that  the  cotton  was  destroyed  on  the  night  of  the  twenty- 
fifth  of  December,  that  the  warehouse  was  without  a  roof 
and  that  the  authorities  had  refused  to  prohibit  the  explosion 
of  firecrackers  and  like  fireworks  in  the  streets  of  the  city. 
In  this  connection,  evidence  was  offered  to  show  that  the 
defendant  owned  a  large  quantity  of  cotton  stored  in  his  ware- 
house and  that  on  the  twenty-fourth  day  of  December  he  ob- 
tained additional  insurance  for  three  days  only,  it  was  held, 
that  the  rejection  of  the  evidence  in  regard  to  this  insurance  on 
the  defendant's  own  goods  was  proper.  Seals  v.  Edmonson, 
71  Ala.  509. 

Same — Breach  of  contract  by  warehouseman — Change  in  Ma- 
hility. 

Where  a  ginner  received  cotton  and  agreed  to  pick  and  bale 
it  in  preference  to  all  other  cotton,  but  fails  to  do  so  in  that 
he  gins  other  cotton,  leaving  part  of  plaintiff's  cotton  unginned, 
and  the  gin  with  plaintiff's  cotton  is  destroyed  by  fire,  the 
ginner  is  liable  to  the  plaintiff  for  the  loss.  Pattison  v.  Wallace, 
1  Stew.  48.  Questioned  in  Lehman,  Durr  &  Co.  v.  Pritchett, 
84  Ala.  512. 

Sajne — Authority  of  consignee  or  warehouseman  to  receive  goods. 

A  consignee  of  goods  shipped  by  steamboat  is  the  agent  of 
the  owner  to  receive  them  at  the  port  of  delivery,  and  has 
authority  to  receive  the  goods  at  any  particular  ])oint  at  that 
port;  and  where  the  bill  of  lading  stipulates  for  a  delivery 
"unto  warehouse  or  to  assigns"  at  a  river  landing  in  the  inte- 
rior, the  warehouseman  at  that  landing  is  the  consignee.  The 
consignee,  who  is,  for  most  purposes,  deemed  the  owner,  may 
waive  a  full  compliance  with  all  the  terms  of  the  carrier's  con- 
tract in  reference  to  delivery,  Winston  v.  Cox  B.  &  Co.,  38 
Ala.  268. 


ALABAMA.  9 

Delivery — Any  member  of  a  partnership  entitled  to  goods  stored 
in  firm  name. 

Where  jjroperty  is  stored  by  one  iiUMiiber  of  a  firm  with  a 
warehouseman,  in  tlie  name  of  the  firm,  each  partner  may  re- 
ceipt for  such  property ;  a  dehvery  to  any  one  partner  is  a  dehv- 
ery  to  the  firm.     Croswell  v.  Lehman,  Durr  &  Co.,  54  Ala.  363. 

Same — Presumption  from  failure  to  deliver  without  explana- 
tion— Burden  of  proof. 

If  a  warehouseman  fails  to  deliver  goods,  intrusted  to  him, 
upon  demand,  and  will  not  account  for  them  or  explain  his 
refusal,  it  will  be  presumed  that  he  has  wrongfully  converted, 
or  wrongfully  retains,  the  same.  But  if  he  alleges  their  loss 
from  a  cause  for  which  he  woukl  not  be  responsible,  the  burden 
is  cast  upon  the  plaintiff  to  prove  that  the  loss  was  caused  by 
the  warehouseman's  negligence.  Seals  v.  Edmonson,  71  Ala. 
509;  Mobile  &  G.  R.  R.  Co.  v.  Prewitf,  46  Ala.  63. 

Same — What  w^ll  not  constitute  element  of  damages  in  case 
of  delay. 

An  action  was  brought  against  a  warehouseman  to  recover 
damages  owing  to  the  failure  of  the  warehouseman  to  deliver 
property  on  the  day  when  ordered.  It  appeared  that  the  de- 
livery was  delayed  one  day;  the  plaintiff  claimed  that  as  a 
result  thereof  he  was  entitled  to  the  cost  of  the  insurance  for 
such  day,  and  for  the  interest  which  he  was  obliged  to  pay  on 
the  money  with  which  he  was  to  pay  for  the  goods.  It  was 
held,  that  there  being  no  proof  that  the  insurance  expired  on 
the  day  on  which  the  goods  were  ordered  from  the  warehouse, 
and  that  although  it  was  a  matter  of  common  knowledge  that 
cotton  brokers  borrowed  money  at  very  high  rates  of  interest, 
nevertheless,  such  costs  were  not  the  necessary  and  natural 
result  of  the  delay,  and  that,  therefore,  plaintiff  could  not  re- 
cover for  the  same.  Swift  &  Co.  v.  Eastern  Warehouse  Co., 
86  Ala.  294. 

Bailee  in  general  cannot  dispute  bailor's  title — Notice  of  ad- 
verse claims — //  he  delivers  to  one  purporting  to  be  true  owner  he 
assumes  burden  of  proving  same. 

In  general,  a  bailee  cannot  deny  the  title  of  his  bailor  and 


10  ALAIiAMA    DKnsioNR. 

it  is  his  duty  to  return  the  property  to  his  bailor  upon  demand. 
If  through  neghgence  or  design  he  dehvers  the  property  to  one 
not  entitled  to  it,  his  action  is  a  conversion  thereof.  But 
where  he  has  notice  that  the  property  does  not  belong  to  his 
bailor,  then  a  delivery  to  him  would  be  a  conversion.  If  the 
bailee,  believing  his  bailor  not  to  be  the  true  owner,  surrend- 
ers the  property  to  one  whom  he  believes  to  be  such  owner,  he 
thereby  assumes  the  Inn-rlen  of  proving  such  ownership.  Powell 
V.  Robinson  &  Ledijard,  76  Ala.  423. 

Same — Duty  of  bailee  where  adverse  claims — Judgment  against 
bailee  conclusive  as  to  title. 

At  common  law  a  bailee  cannot  compel  adverse  claimants 
to  interplead  and  he  nuist  defend  himself  as  best  he  may.  If 
the  bailee  be  unwilling  to  take  upon  himself  the  onus  of  prov- 
ing a  superior  title,  he  may  await  the  bringing  of  an  action 
by  the  adverse  claimant.  On  such  action  being  brought,  he 
should  give  his  bailor  notice  and  reciuire  him  to  defend.  A 
judgment  against  the  bailee,  whether  the  bailor  appears,  or 
refuses  to  defend  after  notice,  will  be  a  sufficient  defense  in 
any  subsequent  action  by  the  bailor.  In  such  a  case,  the  rule 
that  the  bailee  cannot  cUspute  the  title  of  his  bailor  does  not 
apply.  The  judgment  there  would  be  conclusive  of  the  supe- 
riority of  the  title  of  the  adverse  claimant.  Powell  v.  Robin- 
son &  Ledyard,  76  Ala.  423;  Croswell  v.  Lehman,  Durr  &  Co., 
54  Ala.  363;  Calhoun  v.  Thompson,  56  Ala.  166;  Thompson  & 
Co.  V.  Union  Warehouse  Co.,  110  Ala.  499. 

Same — Warehouseman  must  deliver  to  bailor  or  his  assignee 
— May  be  compelled  to  deliver  to  true  owner. 

It  is  a  general  rule  that  one  who  has  received  property  from 
another  as  his  bailee  must  restore,  or  account  for  the  property, 
to  him  from  whom  he  received  it.  But  the  bailee  has  no  better 
title  than  the  bailor,  and  consequently  it  follows  that  if  a  per- 
son entitled,  as  against  the  bailor,  to  the  property,  claims  it, 
the  bailee  has  no  defense  against  him.  A  bailee,  therefore,  is 
protected  where  he  has  made  a  delivery  to  one  authorized  to 
receive  the  goods.  Croswell  v.  Lehman,  Durr  &  Co.,  54  Ala. 
363. 


ALABAMA.  11 

Conversion — Delivery  of  mortgaged  goods  lo  holder  of  receipt 
— Recordation  of  mortgage  constitutes  notice. 

The  defendants,  warehousemen,  had  stored  certain  grain  in 
their  warehouse  and  it  appeared  that  at  the  time  of  receiving 
the  grain  it  was  mortgaged  to  the  plaintiff,  and  that  the  mort- 
gage thereof  had  been  duly  recorded,  as  required  by  the  stat- 
utes of  this  state.  Subsequently,  the  defendant  delivered  the 
grain  to  a  third  party  who  had  become  the  holder  of  the  ware- 
house receipt  therefor.  It  was  held,  that  the  fact  that  the  mort- 
gage was  recorded  was  constructive  notice  to  the  defendants  of 
the  interest  of  the  plaintiff,  and  was  as  binding  on  them  as  ac- 
tual notice  w^ould  have  been,  and  the  delivery  to  the  holder  of 
the  receipt  was  a  conversion  of  the  grain  for  which  the  defend- 
ant was  liable.     Hudmun  &  Bros.  v.  Du  Bose,  85  Ala.  446. 

Action  of  assumpsit  by  warehousemen,  when  maintainable. 

Warehousemen  may  maintain  assumpsit  for  cotton  "shipped 
by  them  as  warehousemen  only"  and  not  delivered  to  the  con- 
signees, provided,  the  contract  was  made  with  them  personally. 
Fry  V.  Garter  &  Howell,  25  Ala.  479. 

Evidence — Opinion. 

Where  cotton  was  destroyed  by  fire,  the  following  opinion 
was  held  to  be  properly  receivable  in  evidence,  it  being  first 
shown  that  the  witness  had  been  engaged  in  the  cotton  busi- 
ness for  many  years.  That  if  a  blazing  missile  or  burning  coal 
had  been  applied  to  the  cotton,  it  would  have  been  immediately 
fired  and  would  have  burned  with  such  rapidity  that  its  extin- 
guishment would  have  been  improbable,  if  not  impossible. 
Seals  V.  Edmonson,  71  Ala.  509. 

Pleading — Counts  in  complaint — Charge — Liability  wJiere  there 
is  gross  negligence. 

Where  in  an  action  against  a  railroad  company  for  the  loss 
of  goods  intrusted  with  it  for  transportation,  the  complaint 
contained  two  counts,  one  on  the  contract  of  common  carriers, 
the  other  on  a  contract  of  warehouseman  without  hire,  it  ap- 
peared that  the  goods  had  been  lost,  while  stored  in  the  com- 
pany's warehouse  and  after  the  plaintiff  had  had  an  opportunity 


12  ALABAMA    DECISIONS. 

to  remove  them,  a  charge  asked  by  the  defendant  under  the 
latter  count,  that  the  company  is  only  responsible  for  injuries 
and  losses  occasioned  by  its  gross  negligence  is  proper  and 
should  be  given.     Mobile  &  G.  R.  R.  Co.  v.  Prewitt,  46  Ala.  63. 

H. 

Storage  charges — Performance  within  one  year — Promise  by 
a  third  person  to  pay  same — Statute  of  frauds. 

A  warehouseman  sued  a  vendor  for  storage  charges  due  on 
cotton  which  the  former  had  shipped  after  receiving  the  prom- 
ise of  the  defendant  that  he  would  pay  the  same.  It  was  held, 
that  the  contract  was  not  within  that  provision  of  the  stat- 
ute of  frauds  which  requires  all  contracts  which  by  the  terms 
are  not  to  be  performed  within  one  year, to  be  in  writing.  That 
the  contract  in  question  could  be  performed  in  less  than  one 
year,  although  it  might  continue  for  a  much  longer  period. 
To  facilitate  the  owner  of  the  cotton  in  his  dealings  with  the 
plaintiff,  the  defendant  made  the  promise  and  the  plaintiff 
surrendered  his  lien  on  the  cotton  in  consideration  of  the  prom- 
ise of  the  defendant  to  secure  him  in  payment  of  his  charges. 
The  contract  by  which  this  object  was  accomplished  was  sup- 
ported by  considerations  moving  directly  between  the  parties 
and,  although  it  might  be  said  to  be  in  form  of  an  undertak- 
ing to  answer  for  the  debt  of  another,  and  as  a  matter  of  fact, 
when  performed,  it  may  have  that  effect,  it  was  not  a  contract 
coming  within  the  third  clause  of  the  statute  of  frauds  and 
need  not  have  been  in  writing.  Prout  &  Robinson  v.  Webb, 
87  Ala.  593. 

Same — Valid  claim  for,  up  to  date  of  accidental  destruction  of 
goods. 

The  plaintiff,  a  warehouseman,  brought  an  action  against  the 
defendant  who  had  become  the  owner  of  cotton  stored  with 
him  for  storage  charges  due  thereon.  It  was  shown  to  be  the 
custom  and  practice  of  warehousemen  in  the  locality  where 
this  warehouse  was  situated  not  to  demand  payment  of  storage 
charges  until  the  cotton  was  ordered  out  of  the  warehouse  and, 
therefore,  the  last  holder  of  the  receipt  was  Hable  for  the  ac- 
crued storage  charges.     The  defendant  contended,  that  as  the 


ALABAMA.  1'^ 


custom  was  shown  to  be  that  the  warehousemen  did  not  de- 
mand storage  charges  until  the  cotton  was  ordered  out,  and 
that  as  in  this  case  the  cotton,  having  been  burned,  was  never 
ordered  out  of  the  warehouse,  that  therefore  tliere  was  no  valid 
claim  for  storage  charges.  The  court  held  this  to  be  an  extreme 
view  to  take  of  the  practice  of  warehousemen  and  one  which 
could  not  be  sustained,  that  the  practice  was  simply  one  of  con- 
venience and  that  the  warehouseman  could  not  be  said  to  waive 
thereby  his  lien  upon  the  goods  for  storage  charges.  Judgment 
given  for  plaintiff.     Jones  v.  Chaffin,  102  Ala.  382. 

rp^Q^.^r—Not  maintainaUe  against  ivarehouseman  where  there 
is  simvly  a  failure  to  deliver  on  de^nand-Conversion-Gist  of 

action.  . 

Where  a  warehouseman  fails  to  deliver  on  demand  goods  in- 
trusted to  him,  this  fact  alone  will  not  entitle  the  owner  to 
maintain  trover  against  him.  There  must  be  a  conversion  be- 
fore this  action  can  be  brought,  and  a  conversion  is  not  shown 
simply  by  a  failure  to  deliver.  The  owner  in  such  a  case  may 
either  bring  assumpsit  for  the  breach  of  the  contract,  or  he 
may  sue  in  case  for  negligence.  The  limitations  of  the  action 
of  trover  are  closely  drawn  and  it  is  essential  in  all  cases  to 
show  a  conversion  which  is  the  gist  of  the  action.  Davis  &  Son 
V.  Hurt,  114  Ala.  146;  Ala.  &  Tenn.  River  R.  R.  Co.  v.  Kidd,  35 
Ala.  209;  Baker  v.  Malone  &  Sons,  126  Ala.  510. 

Same— Will  not  lie  where  goods  are  taken  by  armed  force. 

An  action  of  trover  will  not  lie  where  goods  are  taken  by  an 
armed  force  without  any  negligence  or  complicity  on  the  part 
of  the  bailee.     Abraham  &  Bro.  v.  Nunn,  42  Ala.  51. 

Same— Complaint  must  contain  averment  of  ownership. 

Where  a  complainant,  in  an  action  of  trover,  failed  to  aver 
that  the  persons,  from  whom  the  plaintiff  was  alleged  to  have 
purchased  the  cotton,  were  the  owners  thereof,  and  also  failed 
to  aver  that  the  plaintiff  was  the  owner  of  the  cotton,  it  was 
held,  that  such  complaint  was  demurrable  on  these  grounds. 
Weil  Bros.  v.  Ponder,  127  Ala.  296. 


14  ALABAMA    1  HXlSlONS. 

Same — Warehouseman  may  maintain — Warehouse  receipt. 

A  warehouseman  may  maintain,  in  his  own  name,  an  action 
of  trover  against  one  who  has  converted  property  intrusted 
to  the  warehouseman  as  bailee.  In  such  case,  where  the  ware- 
houseman is  the  holder  of  the  warehouse  receipt  which  he  issued 
for  the  goods,  it  is  not  necessary  for  him  to  show  that  the  re- 
ceipt has  been  indorsed  to  him  in  order  to  pass  title  to  the 
property.     Baker  v.  Troy  Compress  Co.,  114  Ala.  415. 

M. 

Pledge — Pledgee  cannot  be  deprived  of  his  rights  by  fraudulent 
removal  of  goods  by  pledgor. 

"Where  the  pledgee  of  property  was  wrongfully  deprived  of 
his  possession  by  the  pledgor,  the  pledge  was  not  defeated 
thereby.  Where,  therefore,  property  thus  wrongfully  removed 
comes  into  the  hands  of  a  purchaser  without  notice  of  the 
pledge,  the  pledgee  will  be  protected.  American  Pig  Iron  Stor- 
age Warrant  Co.  v.  German,  Exec,  et  at.,  126  Ala.  194. 

N. 

Loss  by  fire. 

A  warehouseman  is  not  liable  for  the  value  of  goods  destroyed 
by  fire  unless  it  can  be  shown  that  the  loss  occurred  through  his 
negligence.     Seals  v.  Edmonson,  71  Ala.  509. 

Same — Failure  to  sell  cotton  within  a  reasonable  time — Not 
proximate  cause  of  loss. 

The  defendants,  warehousemen  and  connnission  merchants, 
had  cotton  in  their  possession  belonging  to  the  plaintiffs  and 
received  instructions  from  them  to  sell  the  same.  The  plain- 
tiffs attempted  to  hold  the  defendants  liable  on  the  ground 
that,  having  failed  to  sell  the  cotton  within  a  reasonable  time 
after  being  instructed  by  the  plaintiffs  to  do  so,  the  cotton 
being  subsequently  destroyed  by  fire,  that  the  loss  would  not 
have  occurred  had  defendants  obeyed  instructions.  The  court 
held,  that  while  it  might  be  considered  that  it  was  the  duty 
of  the  defendant  to  sell  the  cotton  within  a  reasonable  time 
after  being  instructed  so  to  do,  that  its  subsequent  loss  by  fire 


A1.A15A.MA.  I'") 

could  not  be  regarded  as  tlie  natural  and  proximate  conse- 
quences of  the  delay  in  soiling.  That,  the  burning  of  the  cot- 
ton was  an  accidental  or  collateral  injury,  not  usually  following 
the  result  of  such  delay,  that  the  defendants  as  connnission 
merchants  would  !)('  liable  for  any  natural  injury  resulting 
from  the  delay  to  sell  the  cotton  within  a  reasonabk;  time, 
but  they  would  not  be  liable  for  a  loss  suffered  through  an 
extraordinary  cause  having  no  relation  to  the  delay  except 
that  it  happened  to  1)0  contemporaneous.  Lehman,  Durr  & 
Co.  V.  Pritchett,  84  Ala.  512.  (Doctrine  of  Patterson  v.  Wal- 
lace, 1  Stew.  48,  not  followed.)  Dawjherty  v.  Am.  Un.  Tel. 
Co.,  75  Ala.  168;  East  Tenn.,  Va.  &  Ga.  R.  R.  Co.  v.  Lockart, 
79  Ala.  315;  Burton  v.  Holly,  29  Ala.  318. 

Warranties— Stipulation  in  the  contract  that  warehouse  was  to 
be  fireproof — Effect  thereof. 

"If  it  was  a  term  of  the  plaintiffs'  contract,  that  their  ware- 
house should  be  fireproof,  and  the  defendant's  cotton  was  lost 
by  the  plaintiffs'  failure  to  provide  such  a  house,  then  they 
should  make  good  the  damage  consequent  upon  the  breach 
of  their  undertaking."     Hatchett  v.  Gibson,  13  Ala.  599. 

P. 

Evidence  as  to  necessity  of  presence  of  watchman. 

On  the  trial  of  a  case  against  a  warehouseman  for  the  loss 
of  cotton  destroyed  l^y  fire  while  stored  with  him,  evidence 
was  admitted  to  show  that  the  warehouse  had  been  used  for 
the  storage  of  cotton  for  many  years  In'  the  former  owner;  that 
tluring  the  time  of  its  use,  missiles  had  boon  shot  off  in  the 
streets  under  circumstances  similar  to  those  in  the  present 
case,  and  that  a  watchman  had  not  been  employed  to  guard 
or  protect  it.  It  was  held  on  appeal  that  this  evidence  was 
proper.     Seals  v.  Edmonson,  71  Ala.  509. 

Warehouse  receipt — Issued  in  name  of  warehouseman — Pledge. 

A  warehouseman  owning  goods  deposited  in  his  own  ware- 
house had  receipts  issued  therefor  and  signed  by  his  clerk. 
The  receipts  were  pledged  as  collateral  security  without  being 


16  ALABAMA    DECISIONS. 

indorsed.  It  was  held  that  the  legal  effect  of  this  transaction 
was  to  pass  to  the  pledgee  of  such  property,  the  constructive 
possession  thereof  which  was  sufficient  to  create  a  valid  pledge, 
as  between  the  parties,  and  also  as  to  third  persons,  not  having 
acquired  prior  or  intervening  rights.  Ala.  State  Bank  v.  Barnes, 
82  Ala.  607. 

Same — Negotiability — Not  negotiable  in  sense  of  bills  of  ex- 
change— Not  governed  by  law  merchant. 

A  factor  liaving  in  his  possession  goods  for  the  purpose  of 
sale,  deposited  them  with  the  defendant  warehouseman  and 
took  a  receipt  therefor  in  his  own  name.  He  thereupon 
pledged  the  receipt  with  a  bank  to  secure  payment  of  a  loan. 
After  default  was  made  in  payment,  an  action  was  brought 
by  the  owner  of  the  goods  against  the  warehouseman  to  re- 
cover their  possession.  The  pledgee  interposed  the  claim  that 
as  the  receipts  were  negotiable  he  had  taken  title  to  the  prop- 
erty under  the  warehouse  laws  of  the  state  of  Alabama.  It 
further  aj^peared,  that  in  the  contract  of  pledge  there  was  the 
folIoAving  sentence, "  which  cotton  has  been  advanced  upon  by 
us  for  its  full  value."  It  was  held  that  the  warehouse  receipt 
was  not  negotiable  in  the  sense  of  bills  of  exchtmge  and  that 
it  conveyed  no  greater  title  to  the  holder  thereof  than  would 
the  possession  of  the  goods  themselves.  That  the  possession 
of  the  warehouse  receipt  by  the  factor  was  equivalent  only  to 
the  possession  of  the  property,  and  that,  therefore,  the  only 
interest  which  the  factor  could  pledge  in  such  cotton  was  the 
actual  interest  which  he  had  therein.  Further,  that  the  clause 
in  the  warehouse  laws  which  states  that  warehouse  receipts 
"given  for  any  goods  stored  or  deposited  with  any  warehouse- 
man" means  only  goods  deposited  by  a  person  having  title 
thereto.  This  section  of  the  act  proceeds  upon  the  assump- 
tion that  the  receipt  was  so  issued.  Commercial  Bank  of  Selnia 
V.  Hurt,  99  Ala.  130;  Allen,  Bethune  &  Co.  v.  Maury  &  Co., 
66  Ala.  10. 

Same — Effect  of  transfer  for  a  gambling  debt — Not  a  contract. 
The  plaintiff  brought  an  action  in  detinue  against  a  ware- 
houseman for  the  recovery  of  cotton  represented  by  a  receipt 


ALAUA.MA.  17 

of  which  he  was  a  bona  fide  holder.  It  appeared  that  the  re- 
ceipt had  been  issued  to  one  who  had  transferred  it  to  plain- 
tiff's transferror  in  consideration  of  a  gambling  debt.  Such 
person  intervened  in  the  suit  and  claimed  title  to  the  property 
on  the  ground  that  he  had  not  parted  with  such  title  as  th(3 
consideration  for  which  the  assignment  was  made  was  void 
under  the  laws  of  the  state.  It  was  held,  that  the  plaintiff 
was  entitled  to  possession  of  the  goods  and  that  the  transfer 
of  the  receipt  by  the  original  owner,  who  had  indorsed  the 
same  in  blank,  had  been  the  cause  of  the  plaintiff  securing 
possession  of  the  same  in  this  condition  and,  therefore,  that 
he  was  estopped  to  deny  the  legality  of  such  transfer.  That 
the  effect  of  the  possession  of  the  receipt  was  the  same  as  the 
possession  of  the  property  which  it  represented,  and  that  such 
a  warehouse  receipt  was  not  a  contract  within  the  meaning  of 
the  statutes  of  the  state  of  Alabama  by  which  gambling  con- 
tracts are  declared  to  be  void  in  the  hands  of  a  bona  fide  holder 
for  value.  Danforth  v.  McElroy  &  Co.,  121  Ala.  106;  Allen, 
Bethune  &  Co.  v.  Maury  &  Co.,  66  Ala.  10. 

Same — One  must  be  a  legal  holder  to  maintain  action  thereon. 

The  legal  title  to  warehouse  receipts  must  be  in  the  plain- 
tiff before  he  can  maintain  an  action  thereon  under  section  4222 
of  the  code  of  this  state.  Where  there  was  no  averment  in  the 
complaint  that  the  plaintiff  had  title  to  the  receipt  by  indorse- 
ment, or,  that  the  person  to  whom  it  was  issued  had  affirmed 
in  writing  that  the  property  should  be  delivered  to  the  plain- 
tiff, it  was  held,  that  the  plaintiff  could  not  maintain  an  action 
for  the  recovery  of  the  goods  on  such  warehouse  receipts  for 
he  was  not  entitled  to  possession  of  them.  Baker  v.  M alone 
&  Son,  126  Ala.  510;  Weil  Bros.  v.  Ponder,  127  Ala.  296. 

Same — Negotiability — Procured  through  fraud — Innocent  pur- 
chaser protected. 

Where  a  third  person,  innocently  and  in  good  faith,  pur- 
chases the  warehouse  receipt  for  goods  which  his  vendor  pro- 
cured by  fraud,  such  third  person  will  be  protected,  provided 
he  gave  value  for  the  property,  or  incurred  some  responsibility 
upon  the  credit  of  it,  and  took  without  notice  of  the  fraud. 

Allen,  Bethune  &  Co.  v.  Maury  &  Co.,  66  Ala.  10. 
o 


18  ALxVBAMA   DECISIONS. 

Sa?ne — .4s  collateral — Delivery  without  indorsement — Effect. 

The  general  rule,  independent  of  statutory  regulations,  is 
conceded  to  be  that  the  delivery,  without  indorsement,  of  a 
warehouse  receipt  payable  to  bearer,  as  collateral  security, 
passes  the  legal  title  and  vests  possession  of  the  property  in 
the  pledgee.  The  provisions  contained  in  sec.  876  of  the  code 
have  been  construed  to  mean  that  the  indorsement  of  a  ware- 
house receipt  is  necessary  in  order  to  pass  the  legal  title  thereto. 
Nevertheless  neither  the  above  section  nor  Sess.  Acts,  1880, 
1881,  p.  133,  operates  to  prevent  the  transfer  of  a  special  prop- 
erty and  constructive  possession,  by  the  delivery  of  the  receipt 
mthout  indorsement,  sufficient  to  create  a  valid  pledge  as  be- 
tween the  parties,  and,  as  to  third  persons  not  having  acquired 
prior  intervening  rights.     Ala.  State  Bank  v.  Barnes,  82  Ala.  607. 

Same— Same— In  factors  name— Notice— What  title  acquired. 

Where  a  warehouse  receipt,  issued  in  the  name  of  a  factor 
for  cotton  stored  by  him,  recites  the  name  of  the  owner,  and 
is  afterwards  transferred  by  the  factor  as  collateral  security 
for  a  note,  on  which  note  there  is  indorsed  that  such  "cotton 
has  been  advanced  upon  *  *  *  to  its  full  value"  by  the  factor, 
the  pledgee  in  receiving  the  receipt  has  the  equivalent  of  notice 
of  the  true  state  of  the  account  between  the  owner  and  the 
factor,  and  becomes  the  purchaser  of  only  such  interest  and 
claim  in  the  cotton  as  the  factor  might  assert.  Commercial 
Bank  of  Selma  v.  Lee,  99  Ala.  493;  Cummercial  Bank  of  Selma 
V.  Hurt,  99  Ala.  130. 

Sams—Delivenj  of  cotton  to  one  in  possession  of  the  receipt 
without  indorsement — Warehouseman  liable. 

A  warehouse  receipt  for  cotton,  subject  to  the  order  of  the 
person  in  whose  name  the  receipt  was  given,  or  the  bearer, 
is  an  admission  that  the  cotton  belongs  to  such  person,  and 
in  an  action  to  recover  the  cotton,  or  its  value,  it  is  no  defense 
that  it  has  been  shipped  and  sold  by  dii-ection  of  a  party  who 
had  obtained  possession  of  the  receij^t,  without  indorsement 
by  the  person  stated  to  be  the  depositor  in  the  receipt,  and 
without  authority  from  him  to  dispose  of  the  same.  Lehman, 
Dun  &  Co.  V.  Marshall,  47  Ala.  362. 


ALABAMA.  19 

Same — Pleadings — Suit  by  transferee  against  warehouseman — 
Declaration  must  allege  indorsement  to  plaintiff — Also  defend- 
ant's refusal  to  deliver. 

A  declaration,  in  an  action  against  a  warehouseman  on  a 
warehouse  receipt,  failed  to  allege  that  the  receipt  had  been 
indorsed  to  the  plaintiff.  On  demurrer  it  was  held  that  such 
failure  was  a  fatal  defect  as  under  section  876  of  the  Code  an 
indorsement  of  a  warehouse  receipt  was  necessary  to  pass  the 
title.  It  was  also  held  that  the  declaration  in  this  case  was 
further  defective  in  that  it  did  not  aver  a  refusal  on  the  part 
of  the  defendant  to  deliver  the  cotton  stored.  Jemison  v. 
Birmingham  &  A.  R.  R.  Co.,  125  Ala.  378;  Allen,  Bethune  & 
Co.  V.  Maury  &  Co.,  66  Ala.  10;  Lehman,  Durr  &  Co.  v. 
Marshall,  47  Ala.  362;  Capehart  v.  Granite  Mills  Co.,  97  Ala. 
353;  Baker  v.  Malone,  126  Ala.  510.  But  see  Weil  Bros.  v. 
Ponder,  127  Ala.  296. 

Same — Same — Complaint  must  aver  title  in  plaintiff's  vendor. 

A  declaration  which  failed  to  aver  that  the  person  to  whom 
the  warehouse  receipts  were  issued,  and  from  whom  plaintiff 
purchased  the  cotton,  was  the  owner  of  the  cotton,  held  de- 
fective on  demurrer.  A  majority  of  the  court  also  held  that 
an  indorsement  of  the  warehouse  receipt  to  the  plaintiff  was 
not  necessary  to  pass  title  to  him.  Tyson,  J.,  dissented  from 
this  proposition  citing  authorities  given  above.  Weil  Bros. 
V.  Ponder,  127  Ala.  296.  See  also  Baker  v.  Troy  Compress  Co., 
114  Ala.  415. 

R. 

Bills  of  lading — Negotiahility — Issued  in  name  of  fictitious 
person — Bona  fide  holde  . 

Bills  of  lading  are  not  negotiable  in  the  sense  of  bills  of  ex- 
change and  other  commercial  paper.  Although  it  is  true  that 
under  some  circumstances  a  bill  of  exchange,  payable  to  a 
fictitious  person,  may  be  negotiable,  this  principle  does  not 
apply  to  bills  of  lading.  Therefore  one  who  takes  a  bill  of 
lading  payable  to  a  fictitious  firm,  and  indorsed  with  such 
name  is  not  a  bona  fide  holder  thereof.     It  was  the  duty  of 


20  ALABAMA    DECISIONS. 

such  person  to  inquire  as  to  the  name  indorsed  on  the  bill  of 
lading,  for  it  was  from  such  firm  that  his  rights  as  holder  would 
eminate.  Jasper  Trust  Co.  v.  K.  C,  M.  &  B.  R.  R.  Co.,  99 
Ala.  416. 

S. 

Custom,  what  not  good. 

A  custom  in  the  city  of  Montgomery,  among  merchants, 
factors  and  planters,  dealing  in  cotton,  that  warehouse  re- 
ceipts to  deliver  to  a  certain  person,  or  his  order,  or  the  bearer, 
the  number  of  bales  of  cotton  specified  in  said  receipts,  are 
transferable  by  delivery,  as  money  or  bank  bills,  without  in- 
dorsement, and  that  such  transfer  passes  the  cotton,  without 
further  inquiry  or  evidence  of  title  than  from  what  arises  from 
the  possession  of  such  receipts,  unless  notice  is  given  that  such 
receipts  have  been  lost  or  have  fallen  into  the  hands  of  some 
person  who  is  not  the  owner  or  entitled  to  hold  the  same,  is 
not  a  good  custom.  Lehman,  Durr  &  Co.  v.  Marshall,  47 
Ala.  362. 


AKIZUJSA.  21 


CHAPTER  II. 
ARIZONA. 

LAWS   PERTAINING   TO   WAREHOUSEMEN. 

Receipt : 

A  warehouse  receipt  is  an  instrument  in  writing  signed  by 
a  warehouse  proprietor  or  his  agent,  describing  the  produce 
or  commodity  so  as  to  identify  it,  stating  the  name  of  the 
owner,  the  terms  of  the  contract  for  storage,  and  agreeing  or 
directing  that  the  produce  or  commodity  be  dehvered  to  the 
order  or  assigns  of  a  specified  person.  Rev.  St.  Ariz.  1901, 
sec.  4153. 

Owner  as  manager  to  give  receipt : 

It  shall  be  the  duty  of  every  person  keeping,  managing,  con- 
trolling or  operating,  as  owner  or  agent  or  superintendent  of 
any  company  or  corporation,  any  warehouse  where  any  produce 
or  commodity  is  stored  to  deliver  to  the  owner  of  such  produce 
or  commodity  a  warehouse  receipt  therefor,  bearing  the  full 
name  of  those  operating  said  warehouses,  which  receipt  shall 
bear  the  date  of  issuance,  and  shall  state  from  whom  received, 
the  number  of  sacks,  if  sacked,  the  number  of  bushels  or  pounds, 
the  condition  of  the  same,  and  the  terms  and  conditions  upon 
which  it  is  stored.     Id.  sec.  4154. 

Form  of  receipt  : 

The  receipt  required  in  the  preceding  section  may  be  in  form 
as  follows : 

(Name  of  Firm  or  Company.) 
No (Place  and  Date.) 

Received  in  store  from  (name  of  consignor),  (quantity),  gross, 

lbs.;  tare,   lbs..  No.  (give  here  grade  and  name 

of  commodity),  at  owner's  risk  of  unavoidable  danger,  to  be 
delivered  at  this  warehouse  upon  return  of  this  receipt  properly 
indorsed  and  payment  of  charges.     This  receipt  negotiable  when 


22  ARIZONA    LAWS. 

duly  indorsed  by  consignor.     Storage  to   (here  give  amount 

and  date). 

Signed  (name  of  Firm  or  Company). 
(Name  of  Agent)  Agent. 
Id.  sec.  4155. 

Fraudulent  receipts : 

No  person  shall  issue  any  receipt  or  other  voucher  as  provided 
herein  for  any  produce  or  commodity  not  actually  in  store  at 
the  time  of  issuing  such  receipt,  or  issue  any  receipt  in  any 
respect  fraudulent  in  its  character,  either  as  to  its  date  or  the 
quantity,  quality  or  grade  of  such  property,  or  duplicate  or 
issue  a  second  receipt  for  the  same  while  any  former  receipt  is 
outstanding  for  the  same  property,  or  any  part  thereof  with- 
out writing  across  the  face  thereof  "duphcate."     Id.  sec.  4156. 

Property  stored  to  be  kept  separate : 

No  person  operating  any  warehouse  where  any  produce  or 

commodity  is  stored  shall  mix  any  produce  or  commodity  of 

different  grades  together,  or  deliver  one  grade  to  another,  or 

in  any  way  tamper  with  the  same  while  in  his  possession  or 

custody  with  a  view  to  securing  any  profit  to  himself  or  any  other 

person,  and  in  no  case  mix  different  grades  together  while  in 

store:  Provided,  That  nothing  in  this  title  shall  be  construed 

to  prohibit  any  person  operating  any  warehouse  where  any 

produce  or  commodity  is  stored  from  keeping,  piling  or  storing 

any  produce  or  commodity  offered  for  storage  separate  and 

apart   from   other   produce   or   commodity,   by  marking  such 

produce  in  such  manner  that  it  can  be  identified  and  delivered 

on  presentation  of  the  warehouse   receipt  or  voucher  which 

was  given  for  the  same,  in  which  case  the  receipt  given  shall 

designate  the  mark  on  the  produce  or  commodity  so  stored. 

Id.  sec.  4157. 

Property  not  to  be  transferred  witliout  consent  of  owner : 

No   person   operating   any   warehouse   shall   sell,   incumber, 

ship,  transfer  or  in  any  manner  remove,  or  permit  to  be  shipped, 

transferred  or  removed,  from  the  place  of  storage  at  which  the 

receipt  is  given,  any  produce  or  commodity  for  which  a  receipt 


ARIZONA.  28 

has  been  given  by  him  as  aforesaid  for  storing,  without  the 
written  consent  of  the  holder  of  the  receipt.     Id.  sec.  4158. 

Owner  entitled  to  property  on  presentation  of  receipt  and 
charges : 

On  presentation  of  the  receipt  given  by  any  person  operating 
any  warehouse  for  any  j^nxkice  or  commodity,  and  on  payment 
of  all  charges  due  thereon,  the  oM-ner  shall  be  entitled  to  the 
immediate  possession  of  the  conmiodity  named  in  the  receipt, 
and  it  shall  be  the  duty  of  such  warehouseman,  or  other  person 
having  possession  thereof,  to  deliver  such  commodity  to  the 
owner  of  such  receipt  without  further  expense  to  such  owner 
and  without  unnecessary  delay.     Id.  sec.  4159. 

Penalties  for  violation  : 

Any  person  who  shall  violate  any  of  the  provisions  of  this 
title  shall  be  liable  to  indictment,  and,  upon  conviction,  shall 
be  fined  in  any  sum  not  exceeding  five  thousand  dollars,  or  be 
imprisoned  in  the  territorial  prison  not  exceeding  five  years, 
or  both;  and  in  case  of  a  corporation,  the  person  acting  for  the 
corporation  shall  be  liable  for  like  punishment  upon  indict- 
ment and  conviction.  And  every  person  aggrieved  by  a  vio- 
lation of  this  title  may  have  and  maintain  an  action  at  law 
against  the  person  or  corporation  violating  any  of  its  provisions 
to  recover  all  damages,  immediate  or  consequential,  which  he 
or  they  may  have  sustained  by  reason  of  such  violation,  be- 
fore any  court  of  competent  jurisdiction,  whether  such  person 
shall  liave  been  convicted  under  this  title  or  not.     Id.  sec.  4160. 

Checks  and  reeeii)ts  negotiable  : 

All  checks  and  receipts  given  by  any  person  operating  any 
warehouse  for  any  produce  or  commodity  stored  or  deposited 
are  hereby  declared  negotiable,  and  may  be  transferred  by 
indorsement  of  the  party  to  whose  order  such  check  or  receipt 
was  given  or  issued,  and  such  indorsement  shall  be  deemed  a 
valid  transfer  of  the  commodity  represented  by  such  receipt, 
and  may  be  made  either  in  blank  or  to  the  order  of  another. 
Id.  sec.  4161. 

Transfer  of  title : 

All  the  title  to  the  produce  or  commodity  which  the  first 


24  ARIZONA    LAWS. 

holder  of  a  warehouse  receipt  had  when  he  received  it  passes 
to  every  subsequent  indorsee  thereof  in  good  faith,  and  for 
value,  in  the  ordinary  course  of  business,  with  like  effect  and 
in  like  manner  as  in  the  case  of  a  bill  of  exchange.     Id.  sec.  4162. 

Receipt  made  to  "  bearer  "  : 

When  a  warehouse  receipt  is  made  to  "bearer"  or  in  equiva- 
lent terms,  a  simple  transfer  thereof  by  delivery  conveys  the 
same  title  as  an  indorsement.     Id.  sec.  4163. 

Receipt  does  uot  alter  obligations  of  proprietor : 

A  warehouse  receipt  does  not  alter  the  rights  or  obligations 
of  the  warehouse  proprietor  as  defined  in  this  title  unless  it  is 
plainly  inconsistent  therewith.     Id.  sec.  4164. 

Duplicate  receipts : 

A  warehouse  proprietor  must  subscribe  and  deliver  to  the 
bailor,  on  demand,  any  reasonable  number  of  warehouse  re- 
ceipts, not  exceeding  three  (one  original  and  the  others  marked 
"Duphcate,"  and  the  original  to  state  the  number  of  duplicates 
issued)  of  the  same  tenor,  expressing  truly  the  original  contract 
for  storage,  and  if  he  refuses  to  do  so,  the  bailor  may  take  the 
produce  or  conmiodity  from  him,  and  recover  from  him  besides 
all  damages  thereby  occasioned.     Id.  sec.  4165. 

Proprietor  exonerated  from  liability: 

A  warehouse  proprietor  is  exonerated  from  liability  for  pro- 
duce or  commodity  by  delivery  thereof,  in  good  faith,  to  any 
holder  of  an  original  warehouse  receipt  thereof,  properly  in- 
dorsed, or  made  in  favor  of  the  bearer.     Id.  sec.  4166. 

Surrender  of  receipt: 

When  a  warehouse  proprietor  has  given  a  warehouse  receipt, 
or  other  instrument,  substantially  equivalent  thereto,  he  may 
require  its  surrender,  or  a  reasonable  indemnity  against  claims 
thereon,  l)ofore  delivering  the  produce  or  commodity.  Id. 
sec.  4167. 

(The  above  laws  took  effect  September  1,  1901.) 

Note.  There  seem  to  be  no  decisions  in  Arizona  affecting  warebouse- 
men. 


AKKAN8A8.  2o 


CHAPTER  III. 
ARKANSAS. 

LAWS    PERTAINING   TO    WAREHOUSEMEN. 

Warehoiisemjui  not  to  issue  receipts  until  goods  are  under 
iiis  control : 

No  warehousenuiii,  wharfinger  or  other  person  shall  issue 
any  receipt  or  voucher  for  any  goods,  wares,  merchandise, 
cotton,  grain,  flour  or  other  produce  or  commodity  to  any 
person  or  persons  purporting  to  be  the  holder  or  holders,  owner 
or  owners  thereof,  unless  such  goods,  wares,  merchandise, 
cotton,  grain,  flour  or  other  jjroduce  or  commodity  shall  have 
been  actually  received  into  the  store  or  upon  the  premises 
of  such  warehouseman,  wharfinger  or  other  person,  and  shall 
be  in  the  store  or  on  the  premises  aforesaid,  and  under  his  con- 
trol at  the  time  of  issuing  such  reccij:>t.  S.  &  H.  Digest,  1894, 
sec.  504. 

No  warehouseman,  wharfinger  or  other  person  shall  issue 
any  receipt  or  otiier  voucher  u])()n  any  goods,  wares,  mer- 
chandise, cotton,  gniin,  flour,  or  other  produce  or  commodity 
to  any  person  or  persons  for  any  money  loaned  or  other  in- 
debtedness, unless  such  goods,  wares,  merchandise,  cotton, 
grain,  flour  or  other  produce  or  commodity  shall  be,  at  the 
time  of  issuing  such  recei)3t,  in  the  custody  of  such  warehouse- 
man, wharfinger  or  other  person,  and  shall  be  in  store  or  upon 
the  premises  and  under  his  control  at  the  time  of  issuing  such 
receipt  or  other  voucher  as  aforesaid.     Id.  sec.  505. 

No  warehouseman,  wharfinger  oi-  other  person  shall  issue 
any  second  or  duplicate  receipt  for  any  goods,  wares,  mer- 
chandise, cotton,  grain,  flour  or  other  produce  or  commodity, 
while  any  former  receipt  for  such  goods,  wares,  merchandise, 
cotton,  grain,  flour  or  other  produce  or  commodity,  as  afore- 
said, or  any  part  thereof,  shall  be  outstanding  and  uncancelled 


26  ARKANSAS    LAWS. 

without  writinp:  across  the  face  of  the  samo.  "Duplicate." 
Id.  sec.  oOG. 

No  warehouseman,  wharfinger  or  other  person  shall  sell  or 
incumber,  ship  or  transfer,  or  in  any  manner  remove,  or  i)er- 
mit  to  be  shipped,  transferred  or  removed  beyond  his  control, 
any  such  goods,  wares,  merchandise,  cotton,  grain,  flour  or 
other  produce  or  commodity,  for  which  a  receipt  shall  have 
been  given  by  him,  as  aforesaid,  whether  received  for  storing, 
shipping  grinding,  manufacturing  or  other  purpose,  without 
the  written  assent  of  the  person  or  persons  holding  such  re- 
ceipt.    Id.  sec.  507. 

No  master,  owner  or  agent  of  any  boat  or  vessel,  of  any  de- 
scription, forwarder  or  officer  or  agent  of  any  railroad,  trans- 
fer or  transportation  company,  or  other  person  shall  sign,  or 
give  away  any  bill  of  lading,  receipt  or  other  voucher  or  docu- 
ment for  any  merchandise  or  property  by  which  it  shall  appear 
that  such  merchandise  or  property  has  been  shipped  on  board 
of  any  boat,  vessel,  railroad  car  or  other  vehicle,  unless  the 
same  shall  have  been  actually  shipped  and  put  on  board,  and 
shall  be  at  the  time  actually  on  board  or  delivered  to  such 
boat,  vessel,  car  or  other  vehicle,  or  to  the  owner  or  owners 
thereof,  or  his  or  their  agent  or  agents,  to  be  carried  and  con- 
veyed as  expressed  in  such  bill  of  lading,  leceipt  or  other  voucher 
or  document.     Id.  sec.  508. 

All  receipts  issued  or  given  by  any  warehouseman,  wharfinger 
or  other  person  or  firm,  and  all  bills  of  lading,  transportation 
receipts  and  contracts  of  affreightment  issued  or  given  by  any 
person,  boat,  railroad,  transportation  or  transfer  company  for 
goods,  wares,  merchandise,  cotton,  grain,  flour,  or  other  pro- 
duce or  commodity,  shall  be  and  are  thereby  made  negotiable 
by  written  indorsement  thereon,  and  deliver^'  in  the  same 
manner  as  bills  of  exchange  and  j^romissory  notes;  and  no 
printed  or  written  conditions,  clauses  or  provisions  inserted  in 
or  attached  to  any  such  receipts,  bills  of  lading  or  contracts, 
shall  in  any  way  limit  the  negotiability,  or  affect  any  negotia- 
tion thereof,  nor  in  any  manner  impair  the  right  and  duties 
of  the  parties  thereto,  or  persons  interested  therein;  and  every 
such  condition,  clause  or  provision  purporting  to  limit  or  affect 


ARKANSAS.  27 

the  rights,  duties  or  liabilities  created  or  declared  in  this  act, 
shall  be  void  and  of  no  force  or  effect.     Id.  sec.  509 

Above  section  construed — Bill  of  ladinj?— Transfer  without 
indorsement : 

If  a  written  indorsement  is  necessary  under  S.  &  H.  Dig. 
§§  509,  510,  to  transfer  the  legal  title  to  the  property  described 
in  a  bill  of  lading,  a  transfer  of  one  without  indorsement  as 
security  for  advances  made  is  sufficient  to  pass  the  equitable 
title  therein.     Turner  v.  Israel,  G4  Ark.  244. 

Warehouse  receipts  given  by  any  warehouseman,  wharfinger 
or  other  person  or  firm  for  any  goods,  wares,  merchandise, 
cotton,  grain,  flour  or  other  produce  or  commodity,  stored  or 
deposited,  and  all  bills  of  lading  and  transportation  receipts 
of  every  kind  given  by  any  carrier,  boat,  vessel,  railroad,  trans- 
portation or  transfer  company,  may  be  transferred  by  indorse- 
ment in  writing  thereon,  and  the  delivery  thereof  so  indorsed, 
and  any  and  all  persons  to  whom  the  same  may  be  transferred 
shall  be  deemed  and  held  to  be  the  owner  of  such  goods,  wares, 
merchandise,  cotton,  grain,  flour  or  other  produce  or  com- 
modity, so  far  as  to  give  validity  to  any  pledge,  lien  or  trans- 
fer given,  made  or  created  thereby,  as  on  the  faith  thereof, 
and  no  property  so  stored  or  deposited,  as  specified  in  such 
bills  of  lading  or  receipts,  shall  be  delivered  except  on  surrender 
and  cancellation  of  such  receipts  and  bills  of  lading;  provided, 
that  all  such  receipts  and  bills  of  lading  which  shall  have  the 
words,  "Not  Negotiable,"  plainly  written  or  stamped  on  the 
face  thereof,  shall  be  exempt  from  the  provisions  of  this  act. 
Id.  sec.  510. 

Any  warehouseman,  wharfinger,  forwarder  or  other  person 
who  shall  violate  an)'-  of  the  provisions  of  this  act  shall  be 
deemed  guilty  of  a  criminal  offense,  and  upon  indictment  and 
conviction  shall  be  fined  in  any  sum  not  exceeding  five  thou- 
sand dollars,  or  imprisoned  in  the  ])enitentiary  of  this  state 
not  exceeding  five  years,  or  both;  and  all  and  every  person  or 
persons  aggrieved  by  the  violation  of  any  of  the  provisions 
of  this  act  may  have  and  maintain  an  action  at  law  against 
the  person  or  persons,  corporation  or  corporations,  ■s'iolating 
any  of  the  provisions  of  this  act,  to  recover  all  damages  wliich 


28  ARKANSAS   LAWS. 

he  or  they  may  have  sustained  by  reason  of  any  such  violation 
as  aforesaid,  before  any  court  of  competent  jurisdiction,  whether 
such  person  or  persons  shall  have  been  convicted  of  fraud  as 
aforesaid  under  tliis  act  or  not.     Id.  sec.  511. 

All  provisions  of  this  act  shall  apply  to  bills  of  lading,  and 
to  all  persons  or  corporations,  their  agents  or  servants,  that 
shall  or  may  issue  bills  of  lading  of  any  kind  or  description, 
the  same  as  if  the  words  "forwarder"  and  "bills  of  lad- 
ing" were  mentioned  in  every  section  of  said  act.  Id.  sec. 
512. 

So  much  of  the  preceding  sections  of  this  act  as  forbids  the 
delivery  of  property  except  on  surrender  and  cancellation  of 
the  original  receipt  or  bill  of  lading,  or  the  indorsement  of 
such  delivery  thereon  in  case  of  partial  delivery,  shall  not  ap- 
ply to  property  replevied,  or  removed  by  operation  of  law. 
Id.  sec.  513.     Act,  March  15,  1887. 

When  any  goods,  merchandise  or  other  property  shall  have 
been  received  by  any  warehouseman,  commission  merchant,  or 
common  carrier  and  shall  not  be  claimed  or  received  by  the 
owner,  consignee  or  other  authorized  person  for  the  period  of 
six  months  from  the  time  the  same  should  have  been  called 
for,  it  shall  be  lawful  for  such  warehouseman,  commission  mer- 
chant or  carrier  to  sell  such  goods,  merchandise  or  other  prop- 
erty to  the  highest  bidder  for  cash,  first  having  given  twenty 
days'  notice  of  the  time  and  place  of  sale  to  the  owner,  con- 
signee or  consignor,  when  known,  and  by  advertisement  for 
two  insertions  in  a  daily  or  weekly  newspaper  published  in  the 
county  where  such  sale  is  to  take  i^lace,  the  proceeds  of  such 
sale  to  be  applied  to  the  payment  of  freight,  storage  and  charges 
due,  and  the  cost  of  advertising  and  making  said  sale,  and  if 
any  surplus  is  left  after  paying  freight,  storage,  cost  of  adver- 
tising and  all  other  just  and  reasonable  charges,  the  same  shall 
be  paid  over  to  the  rightful  owner  of  said  property  at  any  time 
thereafter,  upon  demand  being  made  therefor. 

Railroad  companies  shall  not  charge  storage  for  the  first 
forty-eight  hours,  nor  more  than  five  cents  per  day  after  the 
first  forty-eight  hours  on  baggage  not  exceeding  one  hundred 
and  fifty  pounds.     A  record  of  such  sale  shall  be  kept,  which 


oq 

ABKANSAS. 


Shall  be  open  to  the  inspection  of  all  parties  interested  therein 
S  c  2    All  laws  in  conflict  herewith  are  hereby  repealed,  and 
this  act  shall  take  effect  and  be  in  force  from  and  a  ter  .ts  pas- 
sage.   Act  XXX,  Laws,  1895,  Approved  March  7,  1895. 


30  ARKANSAS    DECISIONS. 

DECISIONS  AFFECTING  WAREHOUSEMEN. 

A. 

Bailment — Burden  of  proof — Erroneous  instruction  to  jury. 

The  following  instruction  given  to  the  jury  held,  on  appeal, 
to  be  reversible  error  :  "The  loss  of  the  cotton  being  admitted, 
the  burden  is  upon  the  defendant  to  show  that  such  loss  was 
not  caused  by  the  negligence  of  him  or  his  servants;  and,  unless 
you  find  by  a  preponderance  of  the  evidence  that  the  loss  was 
not  caused  by  such  negligencfe,  your  verdict  will  be  for  the 
plaintiff." 

Further  held  that  the  burden  was  upon  plaintiff  to  show 
defendant's  negligence.     James  v.  Orrell,  68  Ark.  284. 

B. 

Ordinary  care — Warehouseman  not  an  insurer. 

A  warehouseman  is  bound  only  to  the  exercise  of  reasonable 
and  ordinary  care  in  the  preservation  of  goods  intrusted  to  him. 
He  is  not  an  insurer  of  such  goods  and  he  is  not  responsible 
for  their  loss  unless  occasioned  by  his  fault  or  negligence.  Little 
Rock  &  F.  S.  Ry.  Co.  v.  Hunter,  42  Ark.  200;  Kansas  City  & 
F.  S.  Ry.  Co.  V.  McGahey,  63  Ark.  344;  Murphy  v.  Lemay,  32 
Ark.  223  ;  Union  Compress  Co.  v.  Nunnally,  67  Ark.  284;  Burr 
&  Co.  V.  Daugherty,  21  Ark.  559. 

Conversion — Sale  hy  son  of  warehouseman — Ratification. 

The  son  of  a  warehouseman  sold  plaintiff 's  goods  which  were 
stored.  It  appeared  that  the  son  thought  the  goods  had  been 
abandoned  ;  further  that  the  warehouseman  accepted  part  of 
the  proceeds  of  the  sale  and  intended  to  collect  the  balance. 
Held,  that  this  was  a  ratification  of  the  son's  acts  and  that  it 
constituted  a  conversion  of  the  goods  for  which  the  warehouse- 
man was  liable.     Creson  v.  Ward,  66  Ark.  209. 

H. 

Lien — None  for  other  indebtedness — Waiver  of — Vendee. 
A  warehouseman  has  no  lien  upon  goods  in  his  possession 
for  any  indebtedness  to  him  from  the  owner  disconnected  with 


ARKANSAS. 


31 


the  charges  upon  the  goods.  A  warehouseman  having  placed 
his  refusal  to  deliver  goods  on  the  ground  of  a  claim  against 
the  owner  disconnected  with  the  goods,  cannot  afterwards  set 
up  his  lien  for  storage  as  an  excuse  for  not  having  delivered 
them.  Nor  is  it  necessary,  after  refusal  to  deliver  on  such 
ground  for  the  owner  to  make  formal  tender  of  the  amount 
due  for  storage.     Scott  v.  Jester,  13  Ark.  437. 

L. 

Replevin— Storage  charges  must  he  paid  before  it  will  lie- 
Demand. 

Replevin  will  not  lie  for  property  legally  in  the  possession 
of  another  who  has  a  lien  upon  it  for  charges,  until  such  charges 
be  paid,  nor  until  after  demand  and  refusal  or  conversion. 
Hill  V.  Robinson,  16  Ark.  90;  Burr  &  Co.  v.  Daugherty,  21  Ark. 
559. 

N. 

Loss  of  goods— Destruction  after  reaching  hands  of  warehouse- 
man, hut  before  reaching  place  of  storage. 

Where  a  warehouseman  agrees  to  receive  goods  at  another 
than  the  place  of  storage,  he  is  bound  to  exercise  ordinary 
diligence  in  their  removal  and  preservation  from  waste;  and 
if  from  the  want  of  common  and  reasonable  diligence  in  their 
removal  they  are  destroyed,  he  would  be  responsible  to  the 
bailor  in  the  proper  form  of  action.  Burr  &  Co.  v.  Daugherty, 
21  Ark.  559. 

Negligence — What  constitutes — Destruction  by  fire. 

In  an  action  against  a  railway  company  liable  as  warehouse- 
man, for  goods  destroyed  in  its  depot,  it  appeared  that  a  large 
quantity  of  cotton  was  piled  on  its  platform  near  the  depot 
and  a  short  distance  from  the  railway  track ;  that  at  the  time 
the  weather  was  very  dry;  that  the  cotton  was  highly  inflamma- 
ble and  without  protection;  that  about  fifteen  minutes  after 
a  train  passed,  the  cotton  caught  fire,  which  extended  to  the 
depot  and  destroyed  plaintiff's  goods.  Held,  that  there  was 
evidence  to  sustain  a  finding  that  defendant  was  guilty  of  neg- 
ligence.    Raihcay  v.  Dodd,  59  Ark.  317. 


32  ARKANSAS    DlX'lSlUNS. 

Destruction  by  a  mob. 

Where  goods  in  the  hands  of  one  hablc  as  a  warehouseman 
were  destroyed  by  a  mob,  and  no  evidence  was  given  to  show 
neghgence  on  his  part,  it  was  held  that  he  was  not  hable  for 
the  value  of  the  same.  Pacific  Express  Co.  v.  Wallace,  60 
Ark.  100. 

P. 

Insurance — Compress  company  may  insure  for  full  value. 

Where  a  compress  company  insured  goods  intrusted  with 
it  for  compression,  to  their  full  value  and  in  its  own  name  it 
was  held  lawful,  and  that  in  the  case  of  loss  it  could  recover 
the  full  amount  of  the  policy.  After  deducting  the  amount 
of  its  interest  it  would  hold  the  balance  of  the  fund  in  trust 
for  the  owners  of  the  goods.  California  Ins.  Co.  v.  Union 
Compress  Co.,  133  U.  S.  387;  Home  Ins.  Co.  v.  Balto.  Ware- 
house Co.,  93  U.  S.  527;  London  &  N.  W.  Ry.  Co.  v.  Glyii,  1 
Ell.  &  E.  Q.  B.  652. 

Warehouse  receipt — Effect  of  transfer. 

A  warehouseman's  receipt  for  cotton  stored  in  his  warehouse 
is  such  a  document  of  title  that  its  transfer,  by  indorsement  or 
otherwise,  clothes  the  transferee  with  the  legal  title  and  con- 
structive possession  of  the  cotton;  and  this  without  notice  to 
the  warehouseman  of  the  transfer  or  agreement  by  him  to  hold 
for  the  transferee.     Durr  et  at.  v.  Hervey,  44  Ark.  301. 

Same — Same — Warehouseman  bailee  of  every  transferee. 

By  executing  the  receipt  the  warehouseman  consents  to  be- 
come the  bailee  of  any  one  to  whom  it  may  be  transferred,  and 
to  become  such  bailee  from  the  time  of  transfer.     Id. 

Same — As  collateral — Indorsement,  effect  of. 

The  indorsement  and  delivery  of  a  warehouse  receipt  by  the 
owner  of  the  property  described  in  the  receipt,  to  secure  a  debt, 
passes  the  title  of  the  property  to  the  indorsee,  as  against  the 
claims  of  purchasers  and  creditors.  Bank  of  Newport  v.  Hirsch, 
59  Ark.  225. 


ARKANSAS.  33 

Bill  of  lading — Recitals  therein  as  to  condition  of  the  goods. 

A  recital  in  a  bill  of  lading  that  the  goods  were  received 
"in  aj)i)arcnt  good  order''  i-ofcrs  only  to  the  external  condition 
of  the  goods,  and  as  betwc^en  the  original  parties  is  only  prima 
facie  proof  of  the  true  condition  of  the  goods  when  received. 
Rij.  Co.  V.  Necl,  56  Ark.  279. 

Same — Transfer  without  indorsement — Equitable  title. 

By  the  statutes  of  this  state  bills  of  lading  are  made  nego- 
tiable like  those  of  exchange  and  promissory  notes  and  may 
be  transferred  by  written  indorsement.  (Sand.  H.  Dig.  sees.  509 
and  510.)  Assuming  that  these  statutes  require  written  in- 
dorsement to  transfer  the  legal  title  it  is,  nevertheless,  true  that 
the  transfer  without  indorsement,  like  the  transfer  of  an  un- 
indorsed note,  would  be  sufficient  to  pass  the  equitable  title. 
Turner  v.  Israel,  64  Ark.  244. 

Same — What  constitutes  possession  or  control — Estoppel. 

By  the  Act  of  March  15,  1887  (sec.  505),  common  carriers, 
warehousenien  and  others  are  prohibited  from  issuing  a  receipt, 
bill  of  lading  or  other  voucher  for  any  goods  unless  the  same 
are  in  store  or  upon  the  premises  and  under  the  control  of  such 
warehouseman  or  carrier  at  the  time  of  the  issuance  thereof. 
This  statute  gives  a  right  of  action  against  any  person  aggrieved 
by  the  issuance  of  such  receipt  or  voucher  contrary  to  its  terms. 
It  appeared  that  a  carrier  issued  bills  of  lading  for  goods  which 
were  in  possession  of  a  compress  company  pursuant  to  an  ar- 
rangement therewith.  It  was  held  that  the  carrier  was  not 
estopped  as  to  third  persons  from  denying  that  the  property 
represented  by  the  bill  of  lading  was  not  in  his  possession  or 
under  his  control.  Martin  v.  Railway  Co.,  55  Ark.  510. 
3 


34  CALIFOKNIA    LAWS. 


CHAPTER  IV. 
CALIFORNIA. 

LAWS    PERTAINING    TO    WAREHOUSEMEN. 

Deposit,  kiuds  of : 

A  deposit  may  be  voluntary  or  involuntary;  and  for  safe- 
keeping or  for  exchange.  Poineroy's  Civil  Code,  Cal.  1901, 
.sec.  1813. 

Deposit  for  safe-keeping,  what : 

A  deposit  for  keeping  is  one  in  which  the  depositary  is  bound 
to  return  the  identical  thing  deposited.     Id.  sec.  1817. 

Deposit  for  exchange,  what : 

A  deposit  for  exchange  is  one  in  which  the  depositary  is  only 
bound  to  return  a  thing  corresponcUng  in  kind  to  that  which 
is  deposited.     Id.  sec.  1818. 

Depositary  must  deliver  ou  deiuaud  : 

A  depositary  must  deliver  the  thing  to  the  person  for  whose 
benefit  it  was  deposited,  on  demand,  whether  the  deposit  was 
made  for  a  specified  time  or  not,  unless  he  has  a  lien  upon  the 
thing  deposited,  or  has  been  forbidden  or  prevented  from  doing 
so  by  the  real  owner  thereof,  or  by  the  act  of  the  law,  and  has 
given  the  notice  required  by  section  eighteen  hundred  and 
twenty-five.     Id.  sec.  1822. 

No  obligation  to  deliver  without  demand  : 

A  depositary  is  not  bound  to  doli^'^r  a  tiling  deposited  with- 
out demand,  even  where  the  dejDosit  is  made  for  a  specified 
time.     Id.  sec.  1823. 

Notice  to  owner  of  adverse  claim  : 

A  depositary  must  give  prompt  notice  to  the  person  for  whose 
benefit  the  deposit  was  made,  of  any  proceedings  taken  ad- 


CALIFOMNIA.  35 

versely  to  his  interest  in  the  thing  (lep(3sited,  which  may  tend 
to  excuse  the  depositary  from  deUvering  the  thing  to  him. 
Id.  sec.  1825. 

Notice  to  owner  of  thing  wrongfully  detained  : 

A  depositary  who  beUeves  that  a  thing  deposited  with  him 
is  wrongfully  detained  from  its  true  ownci'  may  give  him  notice 
of  the  deposit;  and  if  within  a  reasonable  time  afterwards  he 
does  not  claim  it,  and  sufficiently  establish  his  right  thereto, 
and  indemnify  the  depositary  against  the  claim  of  the  depositor, 
the  depositary  is  exonerated  from  liability  to  the  person  to 
whom  he  gave  notice,  upon  returning  the  thing  to  the  depositor, 
or  assuming,  in  good  faith,  a  new  obligation  changing  his  posi- 
tion in  respect  to  the  thing,  to  his  prejudice.     Id.  sec.  1826. 

Delivery  of  a  thing  owned  jointly,  etc. : 

If  a  thing  deposited  is  owned  jointly  or  in  common  by  persons 
who  cannot  agree  upon  the  manner  of  its  delivery,  the  depos- 
itary may  deliver  to  each  his  proper  share  thereof,  if  it  can 
be  done  ^^ithout  injury  to  the  thing.     Id.  sec.  1827. 

Depositor  must  indemnify  depositary  : 

A  depositor  must  indemnify  the  depositary: 

1.  For  all  damage  caused  to  him  by  the  defects  or  vices  of 
the  thing  deposited;  and,  2.  For  all  expenses  necessarily  in- 
curred by  him  about  the  thing,  other  than  such  as  are  involved 
in  the  nature  of  the  undertaking.     Id.  sec.  1833. 

Obligations  as  to  use  of  thing  deposited  : 

A  depositary  may  not  use  the  thing  deposited,  or  permit  it 
to  be  used,  for  any  purpose,  without  the  consent  of  the  depositor. 
He  may  not,  if  it  is  purposely  fastened  by  the  depositor,  open 
it  without  the  consent  of  the  latter,  except  in  case  of  necessity. 
Id.  sec.  1835. 

Liability  for  damage  arising  from  wrongful  use : 

A  depositary  is  liable  for  any  damage  happening' to  the  thing 
deposited,  during  his  wrongful  use  thereof,  unless  such  damage 
must  inevitably  have  happened  though  the  property  had  not 
been  thus  used.     Id.  sec.  1836. 


36  GALIFOKNIA    LAWS. 

Sale  of  thiug  in  danger  of  perishing : 

If  a  thing  deposited  is  in  actual  danger  of  perishing  before 
instructions  can  be  obtained  from  the  depositor,  the  depositary 
may  sell  it  for  the  best  price  obtainable,  and  retain  the  pro- 
ceeds as  a  deposit,  giving  immediate  notice  of  his  proceedings 
to  the  depositor.     Id.  sec.  1837. 

Injnry  to  or  loss  of  thing  deposited  : 

If  a  thing  is  lost  or  injured  during  its  deposit,  and  the  de- 
positary refuses  to  inform  the  depositor  of  the  circumstances 
under  which  the  loss  or  injury  occurred,  so  far  as  he  has  in- 
formation concerning  them,  or  willfully  misre])resents  the  cir- 
cumstances to  him,  the  depositary  is  presumed  to  have  will- 
fully, or  by  gross  negligence,  permitted  the  loss  or  injury  to 
occur.     Id.  sec.  1838. 

Limitation  of  depositary  for  negligence  : 

The  liability  of  a  depositary  for  negligence  cannot  exceed 
the  amount  which  he  is  informed  by  the  depositor,  or  has  rea- 
son to  suppose,  the  thing  deposited  to  be  w^orth.     Id.  sec.  1840. 

Deposit  for  hire : 

A  deposit  not  gratuitous  is  called  storage.  A  depositary  in 
such  case  is  called  a  depositary  for  hire.     Id.  sec.  1851. 

Degree  of  care  reqnired  of  depositary  for  hire  : 

A  depositary  for  hire  must  use  at  least  ordinary  care  for  the 
preservation  of  the  thing  deposited.     Id.  sec.  1852. 

Rate  of  compensation  for  a  fraction  of  a  week,  etc. : 

In  the  absence  of  a  different  agreement  or  usage,  a  depositary 
for  hire  is  entitled  to  one  week's  hire  for  the  sustenance  and 
shelter  of  living  animals  during  any  fraction  of  a  week,  and 
to  half  a  month's  hire  for  the  storage  of  any  other  property 
during  any  fraction  of  a  half  month.     Id.  sec.  1853. 

Termination  of  deposit : 

In  the  absence  of  an  agreement  as  to  the  length  of  time  dur- 
ing which  a  deposit  is  to  continue,  it  may  be  terminated  by 
the  depositor  at  any  time,  and  by  the  depositary  upon  reason- 
able notice.     Id.  sec.  1854. 


CALIFORNIA. 


87 


S.ame : 

Notwithstanding  an  agreement  respecting  the  length  of  time 
during  which  a  deposit  is  to  continue,  it  may  be  terminated 
by  the  depositor  on  paying  all  that  would  become  due  to  the 
depositary  in  case  of  the  deposit  so  continuing.     Id.  sec.  1855. 

Lien  for  storage  charged  : 

A  depositary  for  hire  has  a  lien  for  storage  charges,  which 
is  regulated  by  the  title  on  liens.     Id.  sec.  1856. 

Storage  property  to  be  sold  : 

If,  from  any  other  cause  other  than  want  of  ordinary  care 
and  diligence  on  his  part,  a  depositary  for  hire  is  unable  to  de- 
liver perishable  property,  baggage,  or  luggage  received  by  him 
for  storage,  or  to  collect  his  charges  for  storage  due  thereon, 
he  may  cause  such  property  to  be  sold,  in  open  market,  to  sat- 
isfy his  lien  for  storage;  provided,  that  no  property  except  per- 
ishable property  shall  be  sold,  under  the  provisions  of  this 
section,  upon  which  storage  charges  shall  not  be  clue  and  un- 
paid for  one  year  at  the  time  of  such  sale.     Id.  sec.  1857. 

Warehouse  receipts  must  not  be  issued  unless  the  prop- 
erty has  been  received  and  remains  in  store  : 

A  warehouseman,  wharfinger,  or  other  person  doing  a  storage 
business  must  not  issue  any  receipt  or  voucher  for  any  mer- 
chandise, grain,  or  other  product  or  thing  of  value,  to  any  per- 
son purporting  to  be  the  owner  thereof,  nor  to  any  person  as 
security  for  any  indebtedness  or  for  the  performance  of  any 
obligation,  unless  such  merchandise,  grain,  or  other  product, 
commodity,  or  thing  has  been,  in  good  faith,  received  b}'  such 
warehouseman,  wharfinger  or  other  person,  and  is  in  his  store 
or  under  his  control  at  the  time  of  issuing  his  receipt;  nor  nmst 
any  second  receipt  for  any  such  property  be  issued  while  a 
former  receipt  for  any  part  thereof  is  outstanding  and  uncan- 
celled.    Id.  sec.  1858. 

Property  not  to  be  removed  without  consent  in  writing : 

No  warehouseman,  wliarfingcr.  or  other  person  must  sell  or 
incumber,  ship,   transfer,  or  remove  beyond  his  control  any 


38  CALIFORNIA    LAWS. 

property  for  which  a  receipt  has  been  given,  'without  the  con- 
sent in  writing  of  the  person  holding  such  receipt  plainly  in- 
dorsed thereon  in  ink.     Id.  sec.  1858a. 

Warehouse  receipts,  cl.assificatioii  and  effect  of  : 

Warehouse  receipts  for  j)roperty  stored  are  of  two  classes; 
first,  transferable  or  neg()tial)le;  and  second,  non-trnnsferable 
or  non-negotial)le. 

Under  the  first  of  these  classes  the  property  is  transferable 
by  indorsement  of  the  party  to  whose  order  such  receipt  was 
issued,  and  such  indorsement  is  a  valid  transfer  of  the  prop- 
erty represented  by  the  receipt,  and  may  be  in  blank  or  to  the 
order  of  another.  All  warehouse  receipts  must  distinctly  state 
on  their  face  for  what  they  are  issued  and  its  brands  and  dis- 
tinguishing marks  and  the  rate  of  storage  per  month  or  season, 
and,  in  case  of  grain,  the  kind,  the  number  of  sacks,  and  pounds. 
If  a  receipt  is  not  negotiable,  it  must  have  printed  across  its 
face,  in  red  ink,  in  bold,  distinct  letters,  the  word  "non-nego- 
tiable."    Id.  sec.  18586. 

Indorsement  on  back  of  negotiable  receipt  of  property 
delivered : 

If  a  negotiable  receipt  is  issued  for  any  property,  neither 
the  person  issuing  it  nor  any  other  person  into  whose  care  or 
control  the  property  comes  nmst  deliver  any  part  thereof 
without  indorsing  on  the  back  of  the  receipt,  in  ink,  the  amount 
and  date  of  the  delivery;  nor  can  he  be  allowed  to  make  any 
offset,  claim,  or  demand  other  than  is  expressed  on  the  face 
of  the  receipt,  when  called  upon  to  deliver  any  property  for 
which  it  was  issued.     Id.  sec.  1858r. 

Negotiable  receipts  and  their  effect : 

If  a  non-negotiable  receipt  is  issued  for  any  property,  neither 
the  person  issuing  nor  any  other  person  in  whose  care  or  con- 
trol the  property  comes  must  deliver  any  j^art  thereof,  except 
upon  the  written  order  of  the  person  to  whom  the  receipt  was 
issued.     Id.  sec.  1858rf. 

Lia])ility  of  loss  by  fire  : 

No  warehouseman  or  other  person  doing  a  general  storage 


CALIFORNIA. 


39 


business  is  responsible  for  iiny  loss  or  damage  to  property  by 
fire  while  in  his  c-ustody,  il'  he  exercises  reasonable  care  and 
diligence  for  its  protection  and  preservation.     Id.  sec.  1858e. 

Penalties  and  liabilities: 

Every  warehouseman,  wharfinger,  or  other  person  who  vio- 
lates any  of  the  provisions  of  section  eighteen  hundred  and 
fifty-eight  to  eighteen  hundred  and  fifty-eight  e,  inclusive,  is 
guilty  of  a  felony,  and,  upon  conviction  thereof,  may  be  fined 
in  a  sum  not  exceeding  iiw  thousand  dollars,  or  imprisoned 
in  the  state  prison  not  exceeding  five  years  or  both.  He  is 
also  liable  to  any  person  aggrieved  by  such  violation  for  all 
damages,  immediate,  or  consequent,  which  he  may  have  sus- 
tained therefrom,  which  damages  may  be  recovered  by  a  civil 
action  in  any  court  of  competent  jurisdiction,  whether  the  of- 
fender has  been  convicted  or  not.     Id.  sec.  1858/. 

Finder  may  put  thing  found  in  storage : 

The  finder  of  a  thing  may  exonerate  himself  from  liability 
at  any  time  by  placing  it  on  storage  with  any  responsible  per- 
son of  good  character,  at  a  reasonable  expense.     Id.  sec.  1868. 

Obligations  of  carrier  when  freight  not  delivered  : 

If,  for  any  reason,  a  carrier  tloes  not  deliver  freight  to  the 
consignee  or  his  agent  personally,  he  must  give  notice  to  the 
consignee  of  its  arrival,  and  keei^  the  same  in  safety,  upon  his 
responsibility  as  a  warehouseman,  until  the  consignee  has  had 
a  reasonable  time  to  remove  it.  If  the  place  of  residence  or 
business  of  the  consignee  be  unknown  to  the  carrier,  he  may 
give  the  notice  by  letter  dropped  in  the  nearest  post-office. 
Id.  sec.  2120. 

Carrier,  how  exonerated  from  liability : 

If  a  consignee  does  not  accept  and  remove  freight  within  a 
reasonable  time  after  the  carrier  has  fulfilled  his  obligation  to 
deliver,  or  duly  offered  to  fulfill  the  same,  the  carrier  may  ex- 
onerate himself  from  further  liability  by  placing  the  freight  in 
a  suitable  warehou.se,  on  storage,  on  account  of  the  consignee, 
and  giving  notice  thereof  to  liiin.     Id.  sec.  2121. 


40  CALIFORNIA    LAWS. 

Note.— The  Act  of  May  1,  1851  (Statutes  of  1851,  page  170),  next  here- 
inafter set  forth,  has  never  been  directly  repealed  and  whether  it  is  still  in 
force,  aud  how  far  it  may  have  been  indirectly  modified  by  other  provi- 
sions of  tlie  law  and  the  Codes,  is  doubtful,  but  it  should  be  considered 
when  makiug  sales,  and  so  far  as  possible,  complied  with. 

An  Act  to  authorize  the  keepers  of  warehouses  to  sell  goods 
on  storage  after  a  certain  period. 

Passed  May  1,  1851. 

The  People  of  the  State  of  Cahfornia,  represented  in  Senate 
and  Assembly,  do  enact  as  follows: 

Sec.  1.  It  shall  and  it  is  hereby  made  lawful  for  any  merchant 
or  keeper  of  a  warehouse  in  this  state  to  sell  by  public  auction 
any  and  all  goods,  wares,  and  merchandise,  which  may  have 
been  left  in  his  store  or  on  storage  three  months  after  the  storage 
as  agreed  upon  by  the  parties  shall  become  due,  by  giving  at 
least  thirty  days'  notice  of  such  sale,  provided  he  shall  only 
sell  sufficient  to  pay  the  storage;  provided  however,  that  if  no 
agreement  shall  have  been  made  by  the  parties,  twelve  months 
shall  be  considered  the  time  for  goods  to  remain  in  store  before 
the  advertising  of  and  sale  for  storage  shall  take  place. 

Sec.  2.  All  goods  offered  for  sale  to  pay  storage  as  aforesaid 
shall  be  published  in  some  newspaper  published  in  such  city, 
town,  or  place,  or  if  there  should  not  be  any  newspaper  pub- 
lished in  any  such  city,  town  or  place,  the-n  there  shall  be  a 
notice  posted  in  writing  at  three  of  the  most  public  places  in 
such  city,  town  or  place,  setting  forth  the  kind  of  goods  offered 
for  sale,  after  which  sale  the  party  having  them  in  store  shall 
make  out  an  account  of  the  same,  which  sums  shall  be  deducted 
from  said  sale ;  the  residue  shall  be  paid  over  to  the  order  of  the 
treasurer  of  the  state  hospital  within  the  county,  and  in  the 
county  of  San  Francisco  to  the  city  treasurer  for  hospital  pur- 
poses, to  the  credit  of  the  party  owning  the  goods  so  sold. 

Sec.  3.  All  sums  thus  paid  over  to  the  treasurer  of  the  state 
hospital  shall  go  into  the  general  fund  of  the  state  hospital, 
until  claimed  by  the  rightful  owner.  In  the  event,  however, 
that  there  is  no  such  institution  as  a  state  hospital  within  the 
county  where  such  sale  shall  take  place,  then  and  in  that  case, 
all  such  sums  of  money  may  be  used  by  the  court  of  sessions 


CALIFORNIA. 


41 


for  the  use  of  the  poor  of  said  county,  until  called  for  by  its 
proper  owner. 

Sec.  4.  In  all  cases  where  goods,  wares  or  merchandise,  shall 
be  offered  for  sale,  as  aforesaid,  to  pay  charges  for  storage,  it 
shall  be  the  duty  of  the  party  offering  the  same  to  give  written 
notice  to  the  treasurer  of  tlu^  state  hospital  that  such  sale  will 
take  place,  whereupon  it  sliall  be  the  duty  of  the  treasurer  of 
the  state  hospital  to  attend  such  sale,  or  appoint  some  one  to 
attend  such  sale  and  make  a  settlement  with  the  party,  as  di- 
rected in  this  act;  should  there  be  no  state  hospital  in  the  county 
where  such  sale  shall  take  place,  then  the  county  treasurer 
shall  attend  such  sales,  and  make  a  settlement  with  the  party 
as  directed  in  this  act. 

Sec.  5.  In  no  case  shall  chests  or  trunks  containing  the  wear- 
ing apparel  of  an  individual  be  sold  under  the  provisions  of 
this  act,  in  less  than  twelve  months  from  the  time  the  same  was 
stored,  unless  by  express  written  agreement  between  the  ware- 
house keeper  and  the  owner  of  such  chest  or  trunk,  authority 
is  given  for  the  sale  of  the  same  at  a  time  fixed. 

Sec.  6.  That  in  case  of  the  death  of  any  person  having  goods 
sold  under  the  provisions  of  this  act,  the  executor  or  admin- 
istrator of  such  deceased  person  shall  be  entitled  to  receive  the 
surplus,  if  any,  after  the  payment  of  the  warehouse  or  other 
proper  charges  on  the  same. 

Sec.  7.  That  in  all  cases  of  sale  of  chests  or  trunks,  containing 
wearing  apparel,  under  the  provisions  of  this  act,  such  chests 
or  trunks  shall  be  opened  and  the  goods  exposed  to  public  view, 
so  that  purchasers  may  judge  of  the  value  of  the  articles  so 
offered  for  sale;  provided,  that  all  private  papers  of  family 
relics,  found  in  such  chests  or  trunks,  shall  be  deposited  with 
the  county  treasurer  for  safe-keeping,  until  called  for  by  the 
owner,  or  person  properly  authorized  to  receive  the  same. 

An  Act  in  relation  to  warehouse  and  wharfinger  receipts,  and 
other  matters  pertaining  thereto. 

Approved  April  1,  1878. 


Issuance  of  receipts  for  soods : 
That  no  warehouseman,  wharfii 


finger,  or  other  person  doing 


42  CALIFOi:XIA    LAWS. 

a  storage  business,  shall  issue  any  receipt  or  voucher  for  any 
goods,  wares,  merchandise,  grain,  or  other  produce  or  com- 
modity, to  any  person  or  persons  purporting  to  be  the  owner 
or  owners  thereof,  unless  such  goods,  wares,  merchandise,  grain, 
or  other  produce  or  commodity,  shall  have  been  bona  fide  re- 
ceived into  store  by  such  warehouseman,  wharfinger,  or  other 
person,  and  shall  be  in  store  and  under  his  control  at  the  time 
of  issuing  such  receipt.     Statutes  of  Cal.  1877-1878,  p.  949,  sec.  1. 

Issning  of  receipt  upon  goods  as  security  for  money 
loaned: 

That  no  warehouseman,  wharfinger,  or  other  person  engaged 
in  the  storage  business  shall  issue  any  receipt  or  other  voucher 
upon  any  goods,  wares,  merchandise,  grain,  or  other  produce 
or  commodity,  to  any  person  or  persons,  as  security  for  any 
money  loaned,  or  other  indebtedness,  unless  such  goods,  wares, 
merchandise,  grain,  or  other  ])roduce  or  commodity,  shall  be, 
at  the  time  of  issuing  such  receipt,  the  proj^erty  of  such  ware- 
houseman, wharfinger,  or  other  person,  shall  be  in  store  and 
imder  control  at  the  time  of  issuing  such  receipt  or  voucher  as 
aforesaid.     Id.  sec.  2. 

Second  receipts,  issuance  of : 

That  no  warehouseman,  wharfinger,  or  other  person  as  afore- 
said, shall  issue  any  second  receipt  for  any  goods,  wares,  mer- 
chandise, grain,  or  other  produce  or  commodity,  while  any 
former  receipt  for  any  such  goods  or  chattels  as  aforesaid,  or 
any  part  thereof,  shall  be  outstanding  and  uncancelled.  Id. 
sec.  3. 

Removal  of  goods  wlien  receipt  issued  : 

That  no  warehouseman,  wharfinger,  or  other  person  as  afore- 
said, shall  sell  or  incumber,  ship,  transfer,  or  in  any  manner 
remove  beyond  his  immediate  control,  any  goods,  wares,  mer- 
chandise, grain,  or  other  produce  or  commodity  for  which  a 
receipt  shall  have  been  given  as  aforesaid,  without  the  written 
assent  of  the  person  or  persons  holding  such  receipt  or  receipts 
plainly  indorsed  thereon  in  ink.     Id.  sec.  4. 


CALIFORNIA.  43 

Receipts  classed  : 

Warehouse  receipts  for  property  stored  shall  be  of  two  classes : 
First,  transferable  or  negotiable;  and,  second,  non-transferable 
or  non-negotiable.  Under  the  first  of  these  classes,  all  prop- 
erty shall  be  transferable  by  the  indorsement  of  the  party  to 
whose  order  such  receipt  may  be  issued,  and  such  indorsement 
of  the  party  shall  be  deemed  a  valid  transfer  of  the  property 
represented  by  such  receipt,  and  may  be  in  blank  or  to  the  order 
of  another.  All  warehouse  receipts  for  property  stored  shall 
distinctly  state  on  their  face  for  what  they  are  issued,  as,  also 
the  brands  and  distinguishing  marks;  and  in  the  case  of  grain, 
the  number  of  sacks,  and  number  of  pounds,  and  kind  of  grain; 
also  the  rate  of  storage  per  month  or  season  charged  for  storing 
the  same.     Id.  sec.  5. 

Receipts  to  be  indorsed  : 

No  warehouseman,  or  other  person  or  persons,  giving  or  issu- 
ing negotiable  receipts  for  goods,  grain,  or  other  property  on 
storage,  shall  deliver  said  property  or  any  part  thereof,  without 
indorsing  upon  the  back  of  said  receipt  or  receipts,  in  ink,  the 
amount  and  date  of  the  deliveries.  Nor  shall  he  or  they  be 
allowed  to  make  any  offset,  claim,  or  demand  other  than  is 
expressed  on  the  face  of  the  receipt  or  receipts  issued  for  the 
same,  when  called  upon  to  deliver  said  goods,  merchandise, 
grain,  or  other  property.     Id.  sec.  6. 

No  delivery  except  on  order : 

No  warehouseman,  or  person  or  persons,  doing  a  general 
storage  business,  giving  or  issuing  non-negotiable  or  non-trans- 
ferable receipts  for  goods,  grain,  or  other  property  on  storage, 
shall  deliver  said  property,  or  any  part  thereof,  except  upon 
the  written  order  of  the  person  or  persons  to  whom  the  receipt 
or  receipts  were  issued.     Id.  sec.  7. 

Non-negotial)le  receipts,  how  marked  : 

All  receipts  issued  by  any  warehouseman  or  other  person, 
under  this  act,  other  than  negotiable,  shall  have  printed  across 
their  face,  in  bold,  distinct  letters,  in  red  ink,  the  words  "non- 
negotiable."     Id.  sec.  8. 


44  CALIFORNIA    LAWS. 

Loss  by  Are : 

No  warehouseman,  person  or  persons,  doing  a  general  storage 
business,  shall  be  responsible  for  any  loss  or  damage  to  prop- 
erty by  fire  while  in  his  or  their  custody,  provided  reasonable 
care  and  vigilance  be  exercised  to  protect  and  preserve  the 
same.     Id.  sec,  9. 

Felony ; 

Any  warehouseman,  wharfinger,  person  or  persons,  who  shall 
violate  any  of  the  foregoing  provisions  of  this  act,  is  guilty  of 
felony,  shall  be  subject  to  indictment,  and,  upon  conviction, 
shall  be  fined  in  a  sum  not  exceeding  five  thousand  dollars 
($5,000),  or  imprisonment  in  the  state  prison  of  this  state  not 
exceeding  five  years,  or  both.  And  all  and  every  person  ag- 
grieved by  the  violation  of  any  of  the  provisions  of  this  act  may 
have  and  maintain  an  action  against  the  person  or  persons  vio- 
lating any  of  the  foregoing  provisions  of  this  act,  to  recover  all 
damages,  immediate  or  consequent,  which  he  or  they  may  have 
sustained  by  reason  of  any  such  violation  as  aforesaid,  before 
any  court  of  competent  jurisdiction,  whether  such  person  shall 
have  been  convicted  under  the  act  or  not.     Id.  sec.  10. 

Carriers  may  retain  goods  nntil  clmrges  paid : 

When  any  goods,  merchandise,  or  other  property  has  been 
received  by  any  railroad  or  express  company,  or  other  common 
carrier,  commission  merchants,  innkeepers,  or  warehousemen, 
for  transportation  or  safe-keeping,  and  are  not  delivered  to  the 
owner,  consignee,  or  other  authorized  person,  the  carrier,  com- 
mission merchant,  innkeeper,  or  warehouseman,  may  hold  or 
store  the  same  with  some  responsible  person  until  the  freight 
and  all  just  and  reasonable  charges  are  paid.  Pol.  Code,  1899, 
sec.  3152. 

Property  unclaimed  within  sixty  days  to  be  sold : 

If  no  person  calls  for  the  property  within  sixty  days  from  the 
receipt  thereof  and  pays  freight  charges  thereon,  the  carrier, 
commission  merchant,  innkeeper,  or  warehouseman  may  sell 
such  property,  or  so  much  thereof,  at  auction  to  the  highest 
bidder,  as  will  pay  freight  and  charges,  first  having  given  twenty 


CALIFORNIA. 


45 


days'  notice  of  the  time  and  place  of  sale  to  the  owner,  consignee 
or  consignor,  when  known,  and  by  advertisement  in  a  daily 
paper  ten  days  (or  if  in  a  weekly  paper,  four  weeks),  published 
where  such  sale  is  to  take  place ;  and  if  any  surplus  is  left  after 
paying  fixMght,  storage,  cost  of  advertising,  and  other  reason- 
able charges,  the  same  must  be  paid  over  to  the  owner  of  such 
property  at  any  time  thereafter,  upon  demand  being  made 
therefor  within  sixty  days  after  the  sale.     Id.  sec.  3153. 

Property  unclaimed,  where  to  go: 

If  the  owner  or  his  agent  fails  to  demand  such  surplus  within 
sixty  days  of  the  time  of  such  sale,  them  it  nmst  be  paid  into 
the  county  treasury,  subject  to  the  order  of  the  owner.  Id. 
sec.  3154. 

Carrier's  responsibility  ceases,  when : 

After  the  storage  of  goods,  merchandise,  or  property,  as  herein 
provided,  the  responsibility  of  the  carrier  ceases,  nor  is  the  per- 
son with  whom  the  same  is  stored  liable  for  any  loss  or  damage 
on  account  thereof,  unless  the  same  results  from  his  negligence 
or  want  of  proper  care.     Id.  sec.  3155. 

Property  upon  which  advances  are  made  may  be  sold : 

When  any  commission  merchant  or  warehouseman  receives 
on  consignment  produce,  merchandise,  or  other  property,  and 
makes  advances  thereon,  either  to  the  owner  or  for  freight  and 
charges,  he  may,  if  the  same  is  not  paid  to  him  within  sixty  days 
from  the  date  of  such  advances,  cause  the  produce,  merchandise, 
or  property  on  which  the  advances  were  made,  to  be  advertised 
and  sold  as  provided  herein.     Id.  sec.  3156. 

Issuing  fictitious  warehouse  receipts  : 

Every  person  carrying  on  the  business  of  a  warehouseman, 
wharfinger,  or  other  depositary  of  property,  who  issues  any 
receipt,  bill  of  lading,  or  other  voucher  for  any  merchandise  of 
any  description,  which  has  not  been  actually  received  upon  the 
premises  of  such  person,  and  is  not  under  his  actual  control  at 
the  time  of  issuing  such  instrument,  whether  such  instrument 


46  CALIFORNIA    LAWS. 

is  issued  to  a  person  as  being  the  owner  of  such  merchandise 
or  as  security  for  any  indebtedness,  is  punishable  by  imprison- 
ment in  the  state  prison  not  exceeding  five  years,  or  by  a  fine 
not  exceeding  one  thousand  dollars,  or  both.  Pomeroy's  Penal 
Code,  Cal.  1901,  sec.  578. 


CALIFORNIA.  47 

DECISIONS    AFFECTING    WAREHOUSEMEN. 

A. 

Bailment — Requisites  of  a  prima  jade  case — Burden  of  proof, 
shifting  thereof. 

Proof  of  the  deposit  and  failure  to  redeliver  in  accordance 
with  the  terms  of  the  contract  makes  a  prima  facie  case  against 
the  warehouseman  and  the  burden  is  upon  him  to  excuse  the 
failure  to  redeliver.  But  where  the  warehouseman  shows  the 
return  of  the  goods  stored  and  further  that  the  contents  of  the 
packages  have  been  lost  by  leakage  or  other  inherent  cause, 
the  burden  shifts  to  the  plaintiff  to  prove  affirmatively  that  the 
leakage  was  caused  by  the  fault  of  the  warehouseman.  Taussig 
et  al.  V.  Bode  &  Haslett,  134  Cal.  260. 

Same — Bailee  protected  by  delivery  in  good  faith  to  bailor. 

Where  a  warehouseman,  after  having  goods  in  his  posses- 
sion, returns  the  same  to  his  bailor  without  notice  that  a  third 
party  claims  title  thereto,  such  delivery  made  in  good  faith  is 
a  good  defense  in  an  action  against  a  warehouseman.  Steele  v. 
Marsicano,  102  Cal.  666. 

Same — Insufficient  evidence  in  action  of  detinue. 

In  an  action  of  detinue  against  a  warehouseman  for  property 
stored  with  him,  it  was  no  defense  for  him  to  show  that  he  had 
wrongfully  disposed  of  the  property  in  an  attempt  thereby  to 
defeat  the  action  of  detinue  which  is  for  the  recovery  of  the 
specific  article.  The  defendant  was  not  allowed  to  set  up  his 
own  wrong  to  defeat  the  action;  therefore  the  warehouseman 
was  held  liable  for  the  value  of  the  property.  Faulkner  v. 
First  National  Bank,  130  Cal.  258. 

B. 

Absolute  contract  to  return  property — Exception — Damage  by 
the  elements,  construed  to  mean  act  of  God. 

Where  a  warehouse  receipt  states  that  the  goods  are  to  be 
returned  to  the  bailor,  the  one  exception  stated  therein  being 
"damage  by  the  elements"  the  warehouseman  is  bound  to  de- 


48  CALIFORNIA    DECISIONS. 

liver  such  goods  upon  presentation  of  receipt;  the  only  vahd 
excuse  which  he  can  make  is  for  loss  or  damage  resulting  from 
act  of  God.  Pope  v.  Farmers'  Union  and  Milling  Co.,  130  Cal. 
139. 

Liability  of  warehousemen — Valid  stipulation  limiting  same — 
Public  policy. 

Agreement  between  a  warehouseman  and  bailor  under  which 
the  former  claims  exemption  from  liability  from  loss  by  fire, 
the  elements,  shrinkage,  leakage,  or  natural  decay,  under  a 
notice  printed  upon  the  margin  of  the  warehouse  receipt,  in 
which  it  is  stated  that  loss  or  damage  from  the  above  causes 
is  at  the  owner's  risk,  it  was  held  that  the  warehouseman  was 
so  exempt  from  liability  and  that  there  is  no  infringement  of 
public  pohcy  by  a  stipulation  to  the  above  effect.  Taussig 
et  al.  V.  Bode  &  Haslett,  134  Cal.  260. 

Bill  of  sale — Delivery  at  warehouse  to  be  weighed,  effect  on  title 
— Attachment. 

The  owner  of  stored  wheat  sold  the  same  and  certain  other 
wheat  which  was  not  in  the  warehouse  but,  under  the  terms  of 
the  bill  of  sale,  was  to  be  delivered  at  the  warehouse  for  the 
purpose  of  being  weighed  and  the  warehouseman  was  thereupon 
to  show  a  certificate  as  to  the  correctness  of  its  weight,  such 
certificate  to  be  in  the  name  of  the  purchaser.  When  the  goods 
had  been  so  delivered  but  before  the  certificate  had  been  issued 
to  the  buyer,  it  was  attempted  to  attach  the  goods.  It  was 
held,  that  the  delivery  io  the  warehouseman  constituted  pas- 
sage of  title  to  the  goods  and  that  the  attachment  had  been 
improperly  made.     Greenbaum  v.  Martinez,  86  Cal.  459. 

Sale  of  wheat  by  warehouseman  who  is  also  a  dealer  therein — 
Necessary  evidence. 

Where  a  person  is  acting  as  a  warehouseman  for  the  storage 
of  wheat  and  is  also  engaged  in  the  business  of  buying  and  sell- 
ing wheat,  a  sale  by  him  to  a  purchaser  will  not  be  set  aside  in 
the  absence  of  conclusive  evidence  that  the  wheat  so  sold  be- 
longed to  the  plaintiff  and  that  it  was  stored  with  such  ware- 
houseman and  then  sold  by  him.  Davis  v.  McNear,  101  Cal. 
606. 


CALIFOiiNIA.  49 

Sale  of  goods  while  stored — Order  upon  warehouseman — Bona 
fide  purchaser  protected. 

A  sells  to  B  part  of  the  goods  which  he  has  stored  with  M,  a 
warehouseman,  and  delivers  to  M  an  order  authorizing  B  to 
remove  the  goods  sold  to  him.  B  pays  A  a  part  of  the  purchase 
price  thereof  and  gives  him  a  note  for  the  balance,  in  which  it 
is  stated  that  A  shall  have  a  lien  on  such  goods  as  additional 
security  for  the  payment  of  the  note;  B  then  sells  the  goods  to 
a  bona  fide  purchaser,  C.  Held,  C  takes  clear  of  any  lien  of  A 
upon  the  goods  for  the  balance  remaining  due  on  the  purchase 
price  thereof.  Goldstone  v.  Merchants  Ice  and  Cold  Storage  Co., 
123  Cal.  625. 

Conversion — Defined  to  he  a  tort. 

In  order  to  establish  conversion  a  tortious  act  must  be  shown. 
Steele  v.  Marsicano,  102  Cal.  666. 

Same — Intermeddling  in  ignorance  of  owner's  claim  not  con- 
version. 

Where  one  intermeddling  with  another's  property  does  not 
assert  title  to  it,  this  act  does  not  constitute  a  conversion. 
There  must  be  some  act  implying  the  exercise  or  assertion  of 
title  or  dominion  over  the  goods  or  some  act  inconsistent  with 
the  plaintiff's  right  of  ownership  or  in  repudiation  of  such  right. 
Id. 

Same — Effect  of  refusal  to  deliver. 

A  demand  of  the  property  and  a  refusal  to  redeliver  it  do  not 
of  themselves  constitute  a  conversion.  They  are  merely  evi- 
dence from  which  a  conversion  may  be  established  and  as  evi- 
dence may  be  repelled  by  proof  of  inability  to  comply,  the  plain- 
tiff must  also  show  the  ability  of  the  defendant  to  comply  with 
the  demand  at  the  time  it  was  made.     Id. 

Same — Same — Held  to  he  conversion. 

Where  a  plaintiff  avers  that  demands  were  made  upon  de- 
fendant for  the  redelivery  of  goods  and  that  defendant  per- 
sistently refused  to  so  deliver  them,  it  was  held  that  this  con- 
stituted a  sufficient  averment  of  conversion.  Faulkner  v.  First 
National  Bank,  130  Cal.  258. 
4 


50  CALIFORNIA   DECISIONS. 

Same — Liability  for. 

Where  a  warehouseman,  knowing  of  a  claim  of  title  of  a  third 
person  to  wheat  stored  in  his  warehouse  in  the  name  of  such 
third  person's  broker,  the  delivery  of  the  wheat,  without  notice 
to  such  third  person,  to  an  assignee  of  the  broker  is  conversion 
thereof,  for  which  the  warehouseman  is  liable.  Hanna  v.  Flint 
et  al.,  14  Cal.  74;  Wilson  v.  Southern  Pacific  R.  R.  Co.,  62  Cal. 
164. 

Same — Same — Goods  still  in  the  warehouse — False  statement 
as  to  sale  for  storage  charges — Return  of  warehouse  receipt  not 
demanded. 

Where  it  appeared  that  the  defendant,  a  warehouseman,  had 
refused  to  deliver  property  of  the  plaintiff  which  he  held  on 
storage,  stating  that  the  same  had  been  sold  in  order  to  pay 
charges  and  at  the  same  time  demanded  a  cash  amount,  for 
which  he  agreed  to  deliver  the  goods,  it  was  held,  that  such 
statements  amount  to  a  conversion  of  the  property,  for  which 
the  warehouseman  was  liable,  and  he  could  not  set  up  a  defense 
that  he  justified  his  refusal  to  deliver  the  goods  on  the  ground 
that  the  receipt  therefor  had  not  been  tendered  to  him,  it  ap- 
pearing from  evidence  that  he  had  made  no  demand  for  the 
receipt.     Briggs  v.  Haycock,  63  Cal.  343. 

Same — When  mortgagee  can  maintain  action. 

Where  a  warehouseman  delivered  harvested  crops  to  a  vendee 
of  the  assignee  in  insolvency  of  the  mortgagor  of  the  crops,  the 
mortgagee  may  maintain  an  action  for  conversion  against  the 
warehouseman  for  such  wrongful  delivery.  Compodonico  v. 
Oregon  Improvement  Co.,  87  Cal.  566. 

Same — Variance  as  to  date — Effect. 

Where  in  a  complaint  in  an  action  for  conversion  it  is  alleged 
that  the  conversion  was  done  by  the  defendant  on  a  particular 
day  and  by  the  proof  at  the  trial  it  is  shown  that  the  conversion 
took  place  upon  another  day,  subsequent  thereto,  but  prior 
to  the  commencement  of  action,  such  variance  is  not  fatal. 
Bancroft  v.  Haslett  et  ah,  106  Cal.  151, 


CALIFOKNIA.  51 

Warehouse,  real  property. 

In  the  absence  of  evidence  to  show  that  a  warehouse,  100  feet 
by  40  feet  (100  x  40),  was  not  attached  to  the  ground,  it  will 
be  presumed  that  it  was  so  attached  and  will  accordingly  be 
treated  as  real  estate.     Santa  Ana  v.  Pritchard  et  ah,  126  Cal.  600. 

Allegations  as  to  ownership  of  warehouse  receipt — Presump- 
tions therefrom — General  demurrer. 

Where  a  complainant  in  an  action  against  warehousemen 
alleges  that  the  defendants  were,  at  the  times  named  therein, 
engaged  in  the  business  of  warehousemen  and  as  such  doing  a 
general  storage  business  and  that  prior  to  a  certain  date  plain- 
tiff delivered  to  the  defendants  for  storage  and  stored  with  them 
certain  quantities  of  barley  and  received  therefor  a  warehouse 
receipt,  copy  of  which  is  set  forth  in  the  complaint,  and  further 
alleges  that  the  plaintiff  has  at  all  times  since  the  delivery  of 
such  property  to  the  warehousemen,  and  is  at  the  time  of  bring- 
ing the  action,  the  sole  owner  and  holder  of  said  receipt  and 
that  on  a  certain  date  plaintiff  presented  receipt  to  defendants 
and  thereupon  demanded  delivery  of  the  barley,  the  defendants 
refusing  to  comply  with  said  demand  ;  it  was  held,  upon  gen- 
eral demurrer,  which  set  forth  that  it  was  nowhere  alleged  in 
the  complaint  that  at  the  time  of  the  commencement  of  the  ac- 
tion plaintiff  was  the  owner  and  entitled  to  the  possession  of 
the  property  claimed,  that  the  presentation  of  the  warehouse 
receipt  in  exactly  the  same  condition  in  which  it  was  received 
by  complainant  was  sufficient  allegation  of  the  ownership  of 
the  property.  The  court,  however,  intimated  that  a  special 
demurrer  might  have  been  sustained.  Visher  v.  Smith,  91 
Cal.  260. 

Statements  made  hy  a  warehouseman— When  considered  part  of 
res  gestce. 

When  it  appears  that  a  warehouseman  made  statements,  at 
the  time  of  the  removal  of  wheat  from  his  warehouse,  pertain- 
ing to  the  ownership  thereof,  such  statements  will  be  received 
in  evidence  as  part  of  the  res  gestae.  Garoutte  v.  Williamson, 
108  Cal.  135. 


52  CALlFUltNIA    DECISIONS. 

Claim  and  delivery — Auxiliary  action — Pleading. 

In  California  there  is  no  form  of  action  which  is  known  tech- 
nically as  "claim  and  delivery."  The  sections  in  the  Code, 
under  this  title,  provide  an  auxiliary  remedy  for  the  recovery 
of  personal  property.  In  a  case  where  an  auxihary  remedy  is 
not  invoked  the  general  rules  of  pleading  apply.  Faidkner  v. 
First  National  Bank,  130  Cal.  258. 

C. 

Safe  deposit — General  principles. 

Where  one  rents  a  safe  deposit  box  from  a  bank  the  bank 
becomes  his  bailee  for  hire  and  is  bound  to  exercise  ordinary 
care  in  the  preservation  and  safe-keeping  thereof,  in  the  absence 
of  a  special  agreement  to  the  contrary.  Cussen  v.  Southern 
California  Savings  Bank,  133  Cal.  534. 

Same — Modified  by  agreement — Limitations  of  such  agreement. 

Where  the  lessor  of  a  safe  deposit  box  and  the  lessee  thereof 
agree  that  the  former  ''shall  use  diligence  that  no  unauthor- 
ized person  shall  be  admitted  to  any  rented  safe,  and  beyond 
this  the  lessor  shall  not  be  responsible  for  the  contents  of  any 
safe  rented  it."  Such  agreement  will  not  be  interpreted  to 
mean  that  the  lessor  is  thereby  relieved  from  liability  to  use 
proper  care  in  the  selection  of  employees  to  guard  such  safes, 
nor  is  such  contract  to  be  in  any  manner  construed  as  a  general 
waiver  by  the  lessee  of  the  lessor's  obligation  of  the  bailee  for 
hire.     Id. 

Same — Duplicate  keys — Retention  of  one  by  bailee,  not  proper 
care — Prima  facie  case. 

Held,  jury  was  fully  justified  in  declaring  defendant  wanting 
in  the  exercise  of  proper  care  when  it  failed  to  deliver  to  plain- 
tiff both  keys  of  a  safe  deposit  box  which  it  rented  to  him,  thus 
leaving  outstanding,  in  the  hands  of  some  one,  a  key  to  the  box. 
As  a  further  lack  of  proper  care,  it  was  shown  that  the  room 
containing  the  boxes  was  in  charge  of  a  young  man  of  about 
the  age  of  seventeen  years,  who  had  been  in  the  employ  of  the 
defendant  for  but  three  months.  A  prima  facie  case  is  made 
out  by  showing  a  deposit  in  the  box  and  subsequent  loss.     Id. 


CALIFOKMIA.  53 

Same — Same — Section  1840,  Civil  Code,  not  applicable. 

In  such  a  case  as  the  above,  the  defendant  cannot  find  relief 
under  section  1840  of  the  Code  which  declares  that  the  liability 
of  a  depositary  for  negligence  cannot  exceed  the  amount  which 
he  is  informed,  by  the  depositor,  or  has  reason  to  suppose,  the 
articles  deposited  to  be  worth.  The  very  manner  of  conduct- 
ing the  business  of  renting  safe  deposit  boxes  contemplates 
that  the  bailee  shall  not  know  the  value  of  the  thing  deposited. 
Id. 

F. 

Common  carrier — Liability  as  warehouseman. 

A  common  carrier  becomes  liable  as  a  warehouseman  only 
after  the  transit  is  terminated  and  the  consignee  has  been  noti- 
fied of  the  arrival  of  the  goods.  Wilson  v.  California  Central 
R.  R.  Co.,  94  Cal.  166;  Jackson  v.  Sacramento  Valley  R.  R.  Co., 
23  Cal.  268;  Hoijt  v.  Railroad,  68  Cal.  644. 

H. 

Action  for  storage  charges — When  earned — Entire  contract. 

Where  a  warehouseman  contracts  to  store  hay  from  Octo- 
ber 17th  to  the  1st  of  the  following  June  and  during  such  in- 
terval the  warehouse  and  contents  are  destroyed  by  fire,  he 
cannot  maintain  an  action  for  the  recovery  of  his  charges.  The 
contract  is  an  entire  one  and  his  charges  are  not  due  until  he 
has  complied  with  the  terms  thereof.  In  the  absence  of  a  stipu- 
lation in  such  contract  that  a  proportional  amount  of  the  storage 
charges  should  ])e  earned  as  the  time  expires,  there  can  be  no 
recovery  unless  contract  has  been  fully  carried  out.  Cunning- 
ham V.  Kermey,  105  Cal.  118. 

Improper  sale  for  storage  charges. 

In  an  action  brought  by  bailor  against  a  warehouseman  for 
conversion  of  a  piano,  the  defendant  alleged  that  the  piano  was 
sold  for  lawful  storage  charges  and  that  payment  of  such  charges 
had  been  refused  by  the  plaintiff  when  demanded  of  him  and 
that  there  is  now  still  due  the  defendant  money  for  the  storage 
of  the  piano.  The  findings  showed  that  the  defendant  did  not 
come  into  lawful  possession  of  the  piano,  that  plaintiff  had  de- 


54  CALIFORNIA   DECISIONS. 

manded  its  return,  which  was  refused,  and  that  it  had  been 
taken  from  the  plaintiff  against  his  will.  It  was  held  on  the 
above  findings,  that  the  plaintiff  was  entitled  to  damages  and 
a  request  for  further  evidence  was  properly  denied.  Bancroft 
Co.Y.HasIett,  106  Cal.  151. 

Sale  for  storage  charges — Liable  for  conversion  unless  proper 
notice  given — Ignorance  of  the  owner's  actual  address. 

Plaintiff  brought  suit  against  defendant,  a  warehouseman, 
for  conversion  of  household  goods  stored  with  him ;  it  appeared 
on  the  trial  that  the  goods  had  been  sold  for  storage  charges 
but  that  the  owner  had  not  received  actual  notice  of  such  sale, 
as  is  required.  It  further  appeared  that  warehouseman  had 
failed  to  note  address  of  the  plaintiff  at  the  time  goods  were 
stored.  It  was  held,  that  such  sale,  in  the  absence  of  the  actual 
notice,  as  required,  constituted  a  conversion  for  which  the  de- 
fendant was  liable  and  that  the  fact  that  the  defendant  had 
failed  to  note  the  place  of  residence  of  the  plaintiff  constituted 
no  excuse  for  the  absence  of  actual  notice.  Stewart  v.  Naud, 
125  Cal.  596. 

Same — When  sheriff  bailor — Liability  for  conversion  if  he  al- 
lows sale  for  storage  charges — Order  of  court  necessary. 

If  a  sheriff  who  has  attached  property,  and  in  order  to  pro- 
tect himself,  stores  the  same,  he  is  personally  liable  to  the  owner 
thereof,  upon  his  official  bond,  if  he  allows  such  property  to  be 
sold  for  unpaid  storage  charges. 

It  was  the  duty  of  the  warehouseman  to  procure  an  order  of 
the  court  authorizing  such  sale ;  in  such  a  case,  the  action  of  the 
warehouseman  is  that  of  his  principal,  therein,  and  in  spite  of 
the  fact  that  he  held  a  statutory  lien  on  such  property  for  the 
storage  charges  there  should  have  been  no  sale  thereof  in  the 
absence  of  an  order  from  the  court.  Aigeltinger  v.  Whelan,  133 
Cal.  110. 

Lien  for  charges — What  constitutes  a  waiver  thereof. 

If  a  warehouseman  states  to  an  officer  of  the  court,  who  is 
about  to  take  possession  of  property  stored  with  him,  that 
there  are  no  charges  due  upon  such  property,  this  constitutes 


CALIFORNIA.  65 

a  waiver  of  his  lien  for  all  of  such  charges  as  may  have  then 
existed.     Blackman  v.  Pierce,  23  Cal.  508. 

^'  All  claims  and  liens,''  held  to  include  cartage  charges. 

Under  the  terms  of  a  contract  between  a  vendor  and  vendee 
of  a  warehouse,  the  vendee  agreed  to  collect  "all  claims  and 
liens"  that  the  vendor  then  had  against  the  property  stored  in 
his  warehouse.  This  was  held  to  include  all  charges  made  by 
the  vendor  for  the  cartage  of  the  goods  to  his  warehouse.  Hurl- 
ford  V.  Neale,  107  Cal.  610. 

I. 

Segregation — What  constitutes — Effect  of — Mortgage  of  stored 
goods. 

Where  the  mortgagee  of  one  thousand  sacks  of  flour  stored 
with  a  warehouseman,  comes  to  said  warehouseman  and  ex- 
hibits to  him  the  w^arehouse  receipt  for  such  flour  and  requests 
that  one  thousand  or  more  sacks  of  such  flour  be  separated 
from  the  entire  [uiiount  of  flour  stored  by  the  mortgagor,  and 
this  is  accordingly  done;  it  was  held  that  this  constituted  a  good 
segregation,  and  thereupon  the  warehouseman  became  the 
agent  of  the  mortgagee.  Squires  v.  Payne,  6  Cal.  654;  Cart- 
wright  V.  Phoenix,  7  Cal.  281. 

Same — Wheri  necessary. 

When  a  vendor  only  sells  part  of  the  goods  on  storage,  those 
sold,  if  stored  together  and  of  the  same  mark,  must  be  sepa- 
rated from  the  larger  mass  in  order  to  change  the  possession ;  but 
where  all  the  goods  of  the  vendor  in  the  hands  of  a  third  party 
are  sold,  the  change  of  possession  is  completed  by  the  delivery 
of  the  order,  taking  a  new  receipt,  and  entry  of  the  transaction 
on  the  books  of  the  warehouseman.  Horr  v.  Barker,  8  Cal.  603 ; 
S.  C,  11  Cal.  393;  S.  C,  6  Cal.  489,  cited  in  Ghirardelli  v.  Mc- 
Dermott,  22  Cal.  539,  and  Davis  v.  Russell,  52  Cal.  611. 

Same — Same — Transfer  on  hooks. 

A  had  a  large  quantity  of  flour  stored  in  the  warehouse  of 
B.  He  sold  a  portion  of  it  to  C,  and  gave  an  order  therefor  on  B, 
who  accepted  the  same  and  gave  C  in  exchange  a  receipt  for 
the  flour  purchased  by  him,  and  transferred  it  on  his  books 


56  CALIFORNIA   DECISIONS. 

to  the  account  of  C.  There  was  no  separation  of  specific  por- 
tion from  the  flour  of  A  as  the  property  of  C  and  the  whole  was 
subsequently  seized  in  an  action  against  A.  Held,  that  the 
sheriff  was  not  liable  to  C,  in  the  absence  of  segregation  of  the 
flour,  but  that  B  was  estopped  by  his  receipt  from  denying  his 
liability.     Adams  v.  Gorham,  6  Cal.  69. 

Same — Wan t  of — Estoppel. 

Warehousemen  who  give  their  receipt  for  goods  on  storage, 
are  estopped  from  setting  up  a  want  of  segregation  of  the  goods 
receipted  for  from  other  goods,  in  an  action  against  them  by 
the  holder  of  the  receipt,  for  a  conversion  of  the  goods  by  a 
seizure  in  an  action  against  a  vendor  of  the  plaintiff.  And 
this,  although  the  warehousemen  are  the  attaching  creditors, 
and  although  the  sheriff  making  the  seizure  was  not  liable,  by 
reason  of  there  being  no  segregation.  Goodwin  v.  Scannell  et  at., 
6  Cal.  541. 

Misdelivery — Carrier  acting  as  warehouseman. 

A  carrier  is  liable  if  it  delivers  goods  to  a  person  who  presents 
a  bill  of  lading  therefor  which  is  unindorsed,  and  such  person 
not  being  identified  to  such  a  carrier  as  one  having  an  interest 
in  such  goods.  Cavallarp  v.  Texas  and  Pacific  Raihvay  Co., 
110  Cal.  348. 

K. 

Attachment  of  goods  in  warehouse — Officer's  possession  hy  aid 
of  keeper — Evidence. 

An  attachment  of  stored  goods  is  properly  made  by  an  officer 
if  he  takes  actual  possession  thereof  and  retains  such  possession 
by  the  assistance  of  a  keeper  whom  he  leaves  in  personal  charge 
thereof.  He  may  show  these  facts  by  parol  evidence.  Sin- 
sheimer  v.  Whitely,  111  Cal.  378. 

L. 

Trover — Transfer  of  warehouse  receipt — Conversion — Burden  of 
proof. 

A  plaintiff  stored  wheat  with  a  warehouseman  and  received 
warehouse  receipt  therefor;  there  was  no  other  wheat  stored  in 


CALIFORNIA.  57 

the  warehouse  at  the  time  and  subsequently  the  warehouseman 
issued  a  receipt  to  another,  for  certain  quantities  of  wheat,  less 
than  the  amount  stored  therein  by  the  plaintiff.  Such  other 
person  negotiated  the  receipt  to  the  defendant,  who  obtained 
possession  of  the  wheat  which  it  represented.  It  further  ap- 
peared that  plaintiff  had  pledged  his  receipt  as  collateral  se- 
curity for  the  payment  of  the  loan,  but  the  evidence  as  to  the 
existence  of  such  loan,  date  thereof,  and  its  payment  was  not 
conclusive.  The  court  instructed  the  jury  that,  if  they  found 
that  the  plaintiff  was  the  owner  of  the  receipt  at  the  time  that 
the  defendant  obtained  possession  thereof,  they  should  find 
for  the  plaintiff,  and  the  jury  so  found.  Upon  appeal,  this 
instruction  was  held  correct.  Garoutte  v.  Williamson,  108  Cal. 
135. 

X. 

Loss  by  fire — Bailor  not  affected  by  contract  between  warehouse- 
man and  railroad  regarding  destruction  of  warehouse  by  fire — 
Negligence. 

A  warehouseman  constructs  a  warehouse  upon  land  belong- 
ing to  a  railroad  and  adjacent  to  its  tracks;  in  the  lease  between 
them  it  was  provided  that  the  railroad  should  not  be  liable  for 
any  loss  or  damage  done  to  the  warehouse,  or  its  contents,  as 
a  result  of  fire  communicated  by  its  engines.  In  a  case  for  loss 
from  such  cause  it  was  held,  that  a  person  storing  his  goods  in 
such  warehouse  could  recover  from  the  railroad  on  showing 
that  the  fire  was  a  result  of  its'  negligence.  King  v.  Southern 
Poa/icCo.,  109  Cal.  96. 

Same — Of  incendiary  origin — Never  "act  of  God'' — Negligence. 

Where  wheat  was  destroyed  by  fire  in  a  warehouse,  such  fire 
being  of  incendiary  origin,  the  warehouseman  is  liable  therefor 
and  cannot  set  up  a  defense  that  the  fire  occurred  without  his 
fault.  Negligence  does  not  enter  into  the  question  in  such 
cases  and  its  absence  will  not  exonerate  the  warehouseman. 
Pope  V.  Farmers'  Union  and  Milling  Co.,  130  Cal.  139. 

Same — Burden  of  proof  on  plaintiff — Negligence. 

Where  it  is  shown  that  the  warehouse,  containing  goods  for 


;38  CALIFORNIA   DECISIONS. 

which  an  action  was  brought,  was  destroyed  by  fire,  the  burden 
of  proof  is  on  the  plaintiff  to  show  that  such  fire  was  caused 
by  the  neghgence  of  the  warehouseman.  Wilson  v.  SouiJiern 
Pacific  R.  R.Co.,  62  Cal.  164. 

Action  for  recovery  of  goods  emhezzled  from  warehouse — Ware- 
houseman may  bring  one  action  for  the  recovery  of  property  be- 
longing to  several  bailors. 

Where  goods  belonging  to  different  bailors  have  been  stolen 
from  a  warehouse  by  an  employee  therein  and  are  found  in  the 
hands  of  a  third  person,  the  warehouseman  may  sue  for  the 
recovery  of  all  goods  so  found,  and  objection  made  by  defend- 
ant that  separate  actions  should  be  brought  in  the  case  of  each 
of  the  warehouseman's  bailors  is  not  well  taken.  Bode  v. 
Lee,  102  Cal.  583. 

Same — Same — Burden  of  proof. 

In  the  above  case,  if  the  defendants  are  unable  to  prove  that 
they  came  into  possession  of  the  property  in  ignorance  of  the 
fact  that  it  had  been  embezzled  from  the  plaintiff,  the  burden 
of  proof  will  be  upon  them  to  ]3rove  that  the  identical  goods 
found  in  their  possession  are  not  the  missing  portion  of  the 
goods  which  the  plaintiff  still  retains  in  his  warehouse.     Id. 

Negligence — When  failure  to  inspect  stored  goods  is  not  igno- 
rance— Leakage — Stipulation  in  ivarehouse  receipt — Instructions 
— Reversible  error. 

Where  a  warehouseman  receives  spirits  for  storage  and  the 
receipt  given  therefor  states  that  the  warehouseman  is  not  re- 
sponsible for  loss  resulting  from  leakage,  and  other  specified 
causes,  this  is  held  to  be  a  notice  to  the  bailor,  and  the  mere 
failure  of  the  warehouseman  to  inspect  the  barrels  containing 
such  spirits  cannot  be  held  to  constitute  negligence  on  his  part. 
Where,  in  a  trial  of  such  a  case,  the  judge  instructs  the  jury 
that  if  they  find  that  the  leakage  was  due  to  the  original  negli^ 
gence  of  the  plaintiffs  in  storing  these  spirits  in  leaky  casks  the 
defendant  will,  nevertheless,  be  liable  for  the  loss,  if,  by  the 
exercise  of  ordinary  care,  he  could  have  discovered  and  cured 
the  defect  or  prevented  the  loss;  such  instruction  held  to  be 
reversible  error.     Taussig  et  al.  v.  Bode  &  Haslett,  134  Cal.  260. 


CALIFORNIA.  59 

Q. 

Warehouse  receipt — Definition. 

A  warehouse  receipt  has  been  defined  to  be  a  written  contract 
between  the  owner  of  the  goods  and  the  warehouseman,  the 
latter  to  store  the  goods  and  the  former  to  pay  for  that  service. 
Sinsheimer  v.  Whitely,  111  Cal.  378;  (Hale  v.  Milwaukee  Dock 
Co.,  29  Wis.  488). 

Same — Issued  in  the  name  of  one  not  the  depositor — Effect. 

Where  A  deposits  fruit  in  a  warehouse  and  takes  a  receipt 
therefor  in  the  name  of  B,  the  reason  for  his  so  doing  being  un- 
explained to  the  warehouseman,  and  A  borrows  money  from 
the  warehouseman  with  such  receipt  as  collateral  security,  and 
afterwards  obtains  a  new  receipt  issued  in  his  own  name,  A  will 
be  regarded  as  the  owner  of  the  goods,  and  an  action  by  B  against 
the  assignee  of  the  warehouseman  cannot  be  maintained,  it 
not  appearing  that  any  privity  had  existed  between  them. 
Lowrie  et  al.  v.  Salz  et  al.,  75  Cal.  349. 

Same — Who  may  issue. 

It  is  only  persons  who  pursue  the  calling  of  warehousemen — 
that  is,  receive  and  store  goods  in  warehouses  as  a  business  for 
profit — who  have  the  power  to  issue  a  technical  warehouse  re- 
ceipt, the  transfer  of  which  is  a  good  delivery  of  the  goods  rep- 
resented by  it.     Sinsheimer  v.  Whitely,  111  Cal.  378. 

Same — Negotiability . 

Warehouse  receipts  are  negotiable  unless  they  have  the  word 
"Non-negotiable"  printed,  in  red  ink,  across  their  face,  and 
when  negotiable  an  indorsement  of  the  receipt  operates  as  a 
valid  transfer.  Cavallaro  v.  Texas  and  Pacific  Railway  Co., 
110  Cal.  348;  Garoutte  v.  Williamson,  108  Cal.  135;  Bishop  v. 
Fidkerth,  68  Cal.  607;  Davis  v.  Russell  et  al,  52  Cal.  611. 

Same — Same — Consideration. 

A  pre-existing  debt  constitutes  a  sufficiently  valuable  con- 
sideration for  a  transfer  of  a  warehouse  receipt.  Davis  v.  Rus- 
sell et  al,  52  Cal.  611;  Bishop  v.  Fidkerth,  68  Cal.  mi ;  Cavallaro 
v.  Texas  and  P.  R.  R.  Co.,  110  Cal.  348. 


60  CALIFORNIA   DECISIONS. 

Same — Same — Effect  of  order. 

Under  act  of  1878  (Statutes,  1878,  page  949)  a  warehouseman 
is  authorized  to  deliver  goods  in  cases  where  a  negotiable  re- 
ceipt was  issued  therefor  only  upon  return  and  delivery  to  him 
of  such  receipt.  In  a  case  where  a  non-negotiable  receipt  had 
been  issued  the  warehouseman  can  deliver  the  goods  upon  a 
written  order  of  the  person  who  had  deposited  them.  Where 
a  warehouseman  receives  an  order  from  a  bailor  directing  him 
to  deliver  goods  standing  to  his  credit,  the  warehouseman  can- 
not be  presumed  to  have  concluded  that  the  receipt  issued 
therefor  was  a  negotiable  receipt,  but,  on  the  contrary,  the 
inference  is  that  it  was  non-negotiable.  Goldstone  v.  Merchants' 
Ice  &  Cold  Storage  Co.,  123  Cal.  625. 

Same — Assignment  of  mortgage — Preference  under  the  insol- 
vency act. 

The  assignment  of  a  warehouse  receipt  made  by  the  mort- 
gagor to  the  mortgagee  on  the  day  of  the  filing  of  the  mort- 
gagor's petition  of  insolvency,  was  not  viewed  as  a  preference 
under  section  55  of  the  insolvency  act,  as  the  value  of  the  prop- 
erty was  less  than  the  debt  for  which  it  was  mortgaged  and 
nothing  was  withdrawn  from  the  reach  of  the  assignee  repre- 
senting the  creditors  of  the  mortgagor.  If  it  be  considered 
that  the  effect  of  this  was  in  form  a  transfer  of  the  legal  title 
to  the  property  described  in  the  receipt  it  was  nevertheless 
valid  as  against  the  assignee.  Campodonico  v.  Oregon  Improve- 
ment Co.,  87  Cal.  566. 

Same — Delivery  when  a  receipt  outstanding — Query. 

Where  a  warehouseman  issued  a  receipt  to  one  S.,  who  had 
made  a  loan  on  the  wheat  stored,  to  the  owners,  E.  &  H., — 
query,  whether  they  could  have  refused  to  deliver  the  wheat 
to  E.  &  H.  while  the  receipt  to  S.  was  outstancHng.  Hanna  v. 
Flint,  14  Cal.  74. 

Same — Weighing  tags  held  not  to  constitute  warehouse  receipt. 

The  mere  transfer  of  weighing  tags  upon  which  it  was  stated, 

"Weighed  for  forty  (40)  sacks  beans"  cannot  be  held  to 

constitute  warehouse  receipts  therefor  sufficient  to  pass  the 


CALIFORNIA.  6] 

title  to  the  property  represented.  The  court  further  held,  that 
there  must  be  something  on  the  face  of  the  instrument  to  in- 
dicate that  a  contract  of  storage  had  been  entered  into  between 
the  parties.  Therefore,  in  such  a  case,  although  the  owner  had 
pledged  such  weighing  tags  as  security  for  a  loan,  the  property 
represented  thereby  could  be  reached  by  an  attaching  creditor. 
Sinsheimer  v.  Whitehj,  111  Cal.  378. 

Same — Delivery  of  order  on  warehouseman — Effect. 

As  between  parties,  the  delivery  to  a  purchaser  of  an  order 
on  a  warehouseman  for  the  goods  was  clearly  sufficient  to  pass 
the  title  thereto  and  rendered  the  purchaser  liable  for  the  price 
thereof.     Ghirardelli  v.  McDermott,  22  Cal.  539. 

Same — Forgery  of — Warehouseman  protected. 

Where  one  purchases  a  warehouse  receipt,  which  was  in  fact 
a  forgery,  the  same  being  executed  by  a  former  employee  of  the 
warehouseman,  and  the  person  who  negotiated  the  receipt  to 
the  purchaser  had  knowledge  of  the  fraud,  the  warehouseman 
will  not  be  liable  on  such  a  receipt.  McNear  v.  Brown  & 
Hershey,  122  Cal.  621. 

Same — Same — What  a  warehouseman  may  offer  in  evidence. 

In  such  a  case  as  above  set  forth,  in  an  action  brought  against 
a  warehouseman  for  the  recovery  of  the  value  of  the  wheat 
represented  in  the  bogus  receipt,  the  warehouseman  may  show 
the  date  on  which  the  clerk,  who  executed  such  false  receipt, 
left  his  employer,  and  further,  that  the  grain  designated  in  the 
receipt  was  not  in  his  warehouse  at  the  time  stated  therein.     Id. 

R. 

Bill  of  lading — Stating  "contents  unknown.'' 

A  common  carrier  cannot  protect  itself  by  the  statement  in 
a  bill  of  lading,  "contents  unknown"  when  there  was  every 
opportunity  to  know  the  same  and  the  cars  were  plainly  marked 
with  statement  of  the  contents  in  large  letters.  Pierce  v. 
Southern  Pacific  Co.,  120  Cal.  156. 

Same — Stipulations  requiring  true  value — Limitation  of  liability. 
A  stipulation  in  a  bill  of  lading  to  the  effect  that  the  carrier 


62  CALirOElSlA    DECISIONS. 

would  not  be  liable  for  a  greater  sum  than  fifty  dollars,  if  the 
package  were  lost,  unless  its  true  value  were  given,  held  to  be 
valid  one.  This  true  even  though  the  loss  resulted  from  the 
negligence  of  the  carrier.  Michalitschke  Brothers  v.  Wells,  Fargo 
&  Co.,  118  Cal.  683;  Hart  v.  Penna.  R.  R.  Co.,  112  U.  S.  341. 

Same — Effect  of  transfer — Same  as  warehouse  receipt. 

An  assignment  of  a  bill  of  lading  passes  title  to  the  goods 
represented  thereby.  The  effect  of  the  assignment  of  a  ware- 
house receipt  does  not  differ  materially  from  that  of  the  as- 
signment of  a  bill  of  lading.     Davis  v.  Russell,  52  Cal.  611. 

T. 

Irijuries  to  persons  by  ivarehousemen — Visitor  injured  by  heavy 
bale  falling  upon  him — Negligence. 

Where  a  person  came  to  a  warehouse  for  the  purpose  of  de- 
livering a  paper  there,  as  he  was  in  the  habit  of  doing  daily, 
and,  while  passing  through  a  passageway,  through  which  per- 
sons having  business  at  the  warehouse  were  accustomed  to 
pass,  was  killed  by  having  a  large  bale  of  goods  thrown  upon 
him  by  employees  of  the  warehouseman,  the  throwing  of  such 
bales  into  the  passageway,  to  which  the  public  had  access,  was 
held  to  constitute  negligence,  and  the  fact  that  the  deceased 
was  unable  to  escape,  after  hearing  the  warning  shouts  of  the 
employees,  was  held  not  to  constitute  contributory  negligence 
on  the  part  of  the  deceased.     O'Callaghan  v.  Bode,  84  Cal.  489, 

Goods  sold  by  assistant  foreman — Larceny — Embezzlement. 

Where  an  assistant  foreman  of  a  warehouse  sells  property 
stored  therein  he  is  guilty  of  larceny.  The  defense  that  the 
crime  was  technical  embezzlement  will  not  stand,  as  embezzle- 
ment is  a  species  of  larceny.  The  People  v.  Perini  et  al.,  94 
Cal.  573. 


COLOEADO.  63 


CHAPTER  V. 
COLORADO. 

LAWS  PERTAINING  TO   WAREHOUSEMEN. 

Public  warehouses  defined : 

Warehouses,  granaries  and  elevators  maintained  for  general 
use  of  the  public  for  storage  purposes  shall  be  deemed  public 
warehouses.     L.  1891,  p.  279,  sec.  1. 

Property  transferred— Warehouse  receipt — "Not  negoti- 
able": 

Warehouse  receipts  for  property  stored  in  any  public  ware- 
house shall  be  transferable  by  the  indorsement  of  the  party 
to  whose  order  such  receipt  may  be  issued,  and  such  indorse- 
ment shall  be  deemed  a  valid  transfer  of  the  property  represented 
by  such  receipt  and  may  be  made  either  in  blank  or  to  the  order 
of  another,  and  the  delivery  of  the  receipt  so  indorsed  shall  be 
a  vaHd  delivery  of  the  property  mentioned  therein:  Provided, 
however,  That  all  warehouse  receipts  which  shall  have  the  words 
"Not  negotiable"  plainly  written,  printed  or  stamped  on  the 
face  thereof  shall  be  exempt  from  the  provisions  of  this  section. 
Id.,  sec.  2. 

Freight  uncalled  for  in  thirty  days  may  be  stored  and 
retained  for  charges — Notice  in  three  days  : 

When  any  goods,  merchandise  or  other  property  shall  have 
been  received  by  any  railroad  or  express  company,  or  other 
common  carrier,  commission  merchants  or  warehouseman,  and 
shall  not  be  received  by  the  owner,  consignee,  or  other  author- 
ized person,  until  the  expiration  of  thirty  days,  it  shall  be  law- 
ful for  said  carrier,  commission  merchant,  or  warehouseman 
to  hold  the  same,  or  the  same  may  be  stored,  with  some  re- 
sponsible person,  and  retained  until  the  freight  and  storage, 
and  all  just  and  reasonable  charges  be  paid  by  the  owner  or 
consignee,  or  by  some  person  for  him:  Provided,  however,  That 


64  COLOKADU    LAWS. 

said  railroads  or  express  companies  or  other  common  carriers, 
commission  merchants,  or  warehousemen,  shall  notify  the 
owners  or  consignees  of  the  receipt  of  such  goods,  merchan- 
dise, or  other  property,  within  three  (3)  days  from  the  receipt 
thereof.  L.  1874,  p.  304,  sec.  1;  G.  L.  1877,  pp.  645,  646, 
sec.  1864;  G.  S.  1883,  p.  1005,  sec.  3432. 

Not  called  for  in  ninety  days,  be  sold— Twenty  days'  pub- 
lication—Surplus : 

If  no  person  having  a  right  thereto  calls  for  said  goods,  mer- 
chandise or  other  property,  within  ninety  days  from  the  re- 
ceipt thereof,  and  pay  freight  and  charges  thereon,  it  shall  be 
lawful  for  such  carrier,  commission  merchant  or  warehouse- 
man, to  sell  such  goods,  merchandise  or  other  property,  or  so 
much  thereof,  at  auction  to  the  highest  bidder,  as  will  pay 
said  freight  and  charges,  first  having  given  twenty  days'  notice 
of  the  time  antl  place  of  sale  to  the  owner,  consignee  or  con- 
signor, if  known,  and  by  advertisement  in  a  daily  paper  (or 
if  in  a  weekly  paper,  four  (4)  weeks),  published  where  such 
sale  is  to  take  place;  and  if  any  surplus  be  left  after  paying 
freight,  storage,  cost  of  advertising,  and  all  other  just  and 
reasonable  charges,  the  same  shall  be  paid  over  to  the  rightful 
owner  of  said  property  at  any  time  thereafter,  upon  demand 
being  made  therefor,  within  ninety  (90)  days.  L.  1874,  pp.  304, 
305,  sec.  2;  G.  L.  1877,  p.  646,  sec.  1865;  G.  S.  1883,  p.  1005, 
sec.  3433. 

Surplus,  when  not  called  for,  paid  into  treasury,  subject, 
etc. : 

If  the  rightful  owner  or  his  agent  fail  to  demand  such  surplus 
within  ninety  (90)  days  of  the  time  of  such  sale,  then  said  sur- 
plus shall  be  paid  into  the  county  treasury,  subject  to  the  order 
of  the  owner;  and  if  the  owner  do  not  demand  such  money  of 
the  county  treasurer  within  one  (1)  j^ear,  then  same  shall  be 
forfeited  and  paid  to  the  general  school  fund  of  the  county. 
L.  1874,  p.  305,  sec.  3;  G.  L.  1877,  p.  646,  sec.  1866;  G.  S.  1883, 
pp.  1005,  1006,  sec.  3434. 

When  carrier's  liability  ceases — Liability  of  warehouseman: 

After  the  storage  of  goods,  merchandise  or  property,  as  herein 


COLORADO.  05 

provided,  the  responsibility  of  the  carrier  shall  cease,  nor  shall 
the  person  with  whom  the  same  may  be  stored  be  liable  for  any 
loss  or  damage,  on  account  thereof,  unless  the  same  shall  result 
from  his  negligence  or  want  of  proper  care.  L.  1874,  \).  305, 
sec.  4;  G.  L.  1877,  pp.  646,  647,  sec.  1867;  G.  S.  1888,  p.  1006, 
sec.  3435. 

Com  mission  man — Warehouseman — May  sell  in  ninety 
days — Publication  : 

When  any  commission  merchant  or  warehouseman  shrill  re- 
ceive on  consignment,  or  on  storage,  produce,  merchandise, 
or  other  property,  and  shall  make  advances  thereon,  either  to 
the  owner,  or  for  freight  and  charges,  and  no  time  be  agreed 
upon  for  the  rej^ayment  of  the  same,  it  shall  be  lawful  for  the 
person  who  makes  such  advances,  if  the  same  be  not  paid  to 
him  within  ninety  (90)  days  from  the  date  of  such  advances, 
to  cause  the  produce,  merchandise  or  property  on  which  the 
advances  were  made  to  be  advertised  and  sold  as  provided  in 
the  second  section  of  this  act;  and  if  a  time  for  the  repayment 
of  such  charges  be  agreed  upon,  then  such  notice  of  sale  may 
be  made  immediately  upon  default  of  such  payment.  L.  1874, 
pp.  305,  306,  sec.  5;  G.  L.  1877,  p.  647,  sec.  1868;  G.  S.  1883, 
p.  1006,  sec.  3436. 

PerisliaMe  goods— Notice— Sale— Notice  to  owner— Affi- 
davit— Sale  without  notice  : 

In  case  the  goods,  merchandise,  or  other  property  referred 
to  in  the  preceding  sections,  shall  consist  of  articles  which  will 
perish  or  become  greatly  damaged  by  delay  in  tlis})osing  of 
the  same,  then  it  shall  be  lawful  for  such  carrier,  commission 
merchant  or  warehouseman,  unless  the  charges  on  such  goods 
are  paid,  and  they  are  claimed,  and  taken  away,  to  sell  all  of 
the  same,  either  at  auction  or  at  private  sale,  for  the  best  price 
that  may  reasonably  be  obtained  therefor,  and  to  dispose  of 
the  proceeds  of  such  sale  as  provided  in  section  two  (2)  of  this 
act:  Provided,  always,  That  before  any  such  sale  is  made  notice 
shall  be  given  to  the  owner,  or  consignee,  or  the  agent  of  him, 
of  the  intent  to  sell  and  dispose  of  such  goods,  merchandise  or 
other  property,  and  the  time  and  place  of  such  sale,  either  by 
5 


66  C(JLOUAD()    LAWS, 

personal  notice  or  by  letter  addressed  and  properly  mailed  to 
him,  which  said  notice  shall  be  given  at  least  twenty-four  (24) 
hours  before  said  sale,  if  the  consignee,  or  owner,  or  agent  of 
him,  so  notified  shall  reside  at  the  place  where  such  goods  are; 
but  if  the  person  to  be  so  notihed  of  such  sale  shall  reside  at  a 
distance,  then  the  time  of  such  sale  sh^dl  be  so  appointed  in 
said  notice  as  to  allow  him,  in  addition  to  the  twenty-four  (24) 
hours  above  mentioned,  a  reasonable  length  of  time  to  claim 
said  goods,  or  to  attend  such  sale;  and  if.  upon  reasonable  in- 
quiry, the  residence  of  such  consignee,  owner,  oi-  agent  cannot 
be  learnetl,  then  upon  the  affidavit  of  sucli  carrier,  connnission 
merchant  or  warehouseman,  or  some  person  in  his  or  their  be- 
half, to  be  filed  and  preserved  by  the  carrier,  commission  mer- 
chant, or  warehouseman,  and  by  them  to  be  produced  and  ex- 
hibited to  any  person  claiming  an  interest  in  the  goods  sold,  or 
to  be  sold,  as  aforesaid,  such  goods,  merchandise  and  other 
property  may  be  sold  as  aforesaid  without  notice.  L.  1874, 
pp.  30G,  307,  sec.  6;  G.  L.  1877,  pp.  647,  648,  sec.  1869;  G.  S. 
1883,  p.  1006,  sec.  3437. 

Above  statute  construed  : 

The  giving  of  notice  twenty-four  hours  before  the  sale,  as 
provided  in  this  statute,  nmst  be  strictly  complied  with.  Mar- 
tin v.  MrLaufihlin,  9  Colo.  153. 

Com  111011  carrier  of  freij^ht  and  passengers  has  lien  on 
goods  and  baggage : 

Evei-y  connnon  carrier  of  goods  and  passengers  who  shall,  at 
the  request  of  the  owner  of  any  personal  goods,  carry,  convey 
or  transport  the  same  from  one  place  to  another,  and  any  ware- 
houseman or  other  person  who  shall  safely  keep  or  store  any 
personal  property  at  the  request  of  the  owner  or  person  law- 
fully in  possession  thereof,  shall  in  like  manner  have  a  lien  upon 
all  such  personal  property  for  his  reasonable  charges  for  the 
transportation,  storage  or  keeping  thereof,  and  for  all  reason- 
able and  proper  advances  made  thereon  by  him,  in  accordance 
with  the  usage  and  custom  of  common  carriers  and  ware- 
housemen. L.  1883,  p.  237,  sec.  2;  G.  S.  1883,  p.  660,  sec. 
2119. 


COLORADO.  67 

False  warehouse  receipt — Penalty : 

That  no  warehouseman,  wharfinger  or  other  person  shall  issue 
any  receipt  or  other  voucher  for  any  goods,  wares,  merchandise, 
grain  or  other  produce  or  commodity  to  any  person  or  persons 
purporting  to  be  the  owner  or  owners  thereof,  unless  such  goods, 
wares,  merchandise,  or  other  produce  or  commodity  shall  have 
been  bona  fide  received  into  store  by  such  warehouseman  or 
wharfinger  or  other  person,  and  shall  be  in  store  and  under  his 
control  at  the  time  of  issuing  such  receipt.  R.  S.  1868,  p.  233, 
sec.  168;  G.  L.  1877,  p.  309,  sec.  768;  G.  S.  1883,  p.  344,  sec.  890. 

Issuing  false  warehouse  receipts  as  security — Penalty : 

That  no  warehouseman,  wharfinger  or  other  person  shall 
issue  any  receipt  or  other  voucher  upon  any  goods,  wares, 
merchandise,  grain  or  other  produce  or  commodity,  to  any 
person  or  persons,  as  security  for  any  money  loaned  or  other 
indebtedness,  unless  such  goods,  wares,  merchandise,  grain  or 
other  produce  or  commodity,  shall  be,  at  the  time  of  issuing 
such  receipt,  the  property  of  such  warehouseman,  wharfinger 
or  other  person,  and  shall  be  in  store  and  under  his  control  at 
the  time  of  issuing  such  receipt  or  other  voucher  as  aforesaid. 
R.  S.  1868,  p.  233,  sec.  169;  G.  L.  1877,  p.  309,  sec.  769;  G.  S. 
1883,  p.  344,  sec.  891. 

Duplicate  receipts  prohibited : 

That  no  warehouseman,  wharfinger  or  other  person  shall 
issue  any  second  receipt  for  goods,  wares,  merchandise,  grain 
or  other  produce  or  commodity,  while  any  former  receipt  for 
any  such  goods  or  chattels  as  aforesaid,  or  any  part  thereof, 
shall  be  outstanding  and  uncancelled.  R.  S.  1868,  p.  233, 
sec.  170;  G.  L.  1877,  pp.  309,  310,  sec.  770;  G.  S.  1883,  pp.  344, 
345,  sec.  892. 

Selling  shipping  goods,  by  warehouseman,  wrongfully  : 

That  no  warehouseman,  wharfinger  or  other  person  shall  sell 
or  incumber,  ship,  transfer,  or  in  any  manner  remove  beyond 
his  immediate  control,  any  goods,  wares,  merchandise,  grain 
or  other  produce  or  commodity,  for  which  a  receipt  shall  have 
been  given  as  aforesaid,  without  the  written  assent  of  the  per- 


68  COLORADO    LAWS. 

son  or  persons  holding  such  receipt.     R.  S.  1868,  p.  233,  sec.  171 ; 
G.  L.  1877,  p.  310,  sec.  771;  G.  S.  1883,  p.  305,  sec.  893. 

Wareliousemaii — Violating  deemed  clieat — Penalty — Dam- 
ages: 

Any  warehouseman,  wharfinger  or  other  person  who  shall 
violate  any  of  the  foregoing  provisions  relating  to  warehouse- 
men, shall  be  deemed  a  cheat,  and  be  subject  to  indictment, 
and  upon  conviction  shall  be  fined  in  any  sum  not  exceeding 
one  thousand  (1,000)  dollars,  and  be  imprisoned  in  the  peni- 
tentiary of  this  state  not  exceeding  five  years ;  and  all  and  every 
person  aggrieved  may  have  and  maintain  an  action  on  the  case 
against  the  person  or  persons  violating  any  of  the  foregoing 
provisions  relating  to  warehousemen,  to  recover  all  damages, 
immediate  or  consequential,  which  he  or  they  may  have  sus- 
tained by  reason  of  such  violation  as  aforesaid,  before  any 
court  of  competent  jurisdiction,  whether  such  person  shall 
have  been  convicted  as  a  cheat  under  the  foregoing  sections 
or  not.  R.  S.  1868,  pp.  233,  234,  sec.  172;  G.  L.  1877,  p.  310, 
sec.  772;  G.  S.  1883,  p.  345,  sec.  894. 

Carriers,  warehousemen,  etc.,  guilty  of  embezzlement — 
Penalty : 

A  carrier,  warehouseman,  factor,  storage,  forwarding  or  com- 
mission merchant,  or  his  clerk,  agent  or  employee,  w^ho,  with 
intent  to  defraud,  sells,  or  in  any  way  disposes  of,  or  applies 
or  converts  to  his  own  use,  any  bill  of  lading,  custom-house 
permit,  or  warehousekeeper's  receipt,  intrusted  to  or  possessed 
by  him,  or  any  property  intrusted  or  consigned  to  him,  or  the 
proceeds  or  profits  of  any  sale  of  such  property,  or  fail  to  pay 
over  such  proceeds,  deducting  charges  and  usual  commissions, 
shall  be  adjudged  to  be  guilty  of  embezzlement,  and  upon  con- 
viction thereof,  shall  be  punished  as  follow^s:  When  the  value 
of  the  property  embezzled,  as  aforesaid,  is  twenty  dollars,  or 
less,  then  by  imprisonment  in  the  county  jail  for  a  period  not 
exceeding  six  months;  w^hen  the  value  of  the  property  em- 
bezzled, as  aforesaid,  is  over  twenty  dollars,  then  by  impris- 
onment in  the  state  penitentiary  for  a  period  of  not  less  than 
one  or  more  than  two  years.     L.  1885,  p.  202,  sec.  1. 


COLORADO.  69 

DECISIONS  AFFECTING  WAREHOUSEMEN. 

A. 

Bailment — Conversion. 

Where  a  bailee  pledges  property  which  has  been  intrusted  to 
him  and  the  pledgee  accepts  the  same  in  good  faith,  believing 
the  property  to  belong  to  such  bailee,  the  right  of  the  owner 
therein  is  not  defeated  and  he  may  recover  the  property  or  its 
value  from  the  pledgee.  The  pledging  of  property  by  a  bailee 
constitutes  conversion  thereof.     Gottlieb  v.  Hartman,  3  Colo.  53. 

B. 

No  title  in  depositor — Judgment  for  intervenor. 

An  action  was  brought  against  a  warehouseman  for  the  con- 
version of  goods  stored  with  him  in  which  action  one  B  inter- 
vened claiming  the  title  to  the  property.  The  complaint  al- 
leged that  the  plaintiff  had  loaned  money  to  the  depositor, 
who  had,  in  turn,  assigned  the  warehouse  receipt  issued  for 
the  goods  to  the  plaintiff.  That  the  plaintiff  had  paid  all  the 
storage  charges  due  the  defendant  and  demanded  the  goods 
and  had  been  met  with  a  refusal  to  deliver.  The  defendant 
warehouseman  answered  and  denied  that  the  property  belonged 
to  the  original  depositor,  alleging  that  he  had  stolen  the  same 
and  that  in  reality  it  belonged  to  one  B.  The  defendant  further 
alleged  that  he  had  received  the  goods  in  ignorance  of  the  want 
of  title  of  the  depositor  to  the  goods.  Plaintiff's  replication 
averred  that  the  defendant  was  estopped  to  deny  the  title  of 
his  depositor  and  that  the  plaintiff  was  in  ignoran  e  of  the 
matter  set  forth  by  the  defendant  concerning  said  lack  of  title. 
Subsequent  to  the  filing  of  the  foregoing  pleading,  B  inter- 
vened and  in  his  petition  set  forth  that  the  property  had  been 
in  his  possession  as  sheriff  pursuant  to  an  attachment  issued 
in  another  action  and  that  at  the  request  of  the  attorney  for 
the  plaintiff  therein  he  had  appointed  the  depositor  his  cus- 
todian, who  had  without  knowledge  of  the  intervenor  deposited 
the  goods  in  the  warehouse  of  the  defendant.  On  the  above 
stated  facts  the  jury  found  for  the  intervenor,  that  he  was  en- 
titled to  the  possession  of  the  property  and  assessed  its  value. 


70  COLORADO   DECISIONS. 

On  this  verdict  the  court  entered  judgment  in  favor  of  the 
intervenor  and  against  the  plaintiff  for  the  sum  found  by  the 
jury.  On  appeal  it  was  held  that  the  judgment  entered  by 
the  court  against  the  plaintiff  was  without  warrant  from  either 
the  petition  or  verdict;  that  by  the  verdict  of  the  jury  posses- 
sion of  the  property  was  awarded  to  the  intervenor  and  the 
value  thereof  was  assessed,  but  there  was  no  finding  either 
against  the  plaintiff  or  the  defendant  specially.  That  the  judg- 
ment did  not  follow  the  verdict  and  it  was  against  a  party 
who  had  incurred  no  liability  to  the  intervenor.  Further  that 
as  no  judgment  had  been  rendered  for  or  against  the  defend- 
ant warehouseman,  he  was  a  stranger  to  the  case  on  appeal. 
The  case  was,  therefore,  reversed  and  a  new  trial  ordered. 
Gottlieb  V.  Barton,  13  C.  A.  147. 

Pledge — By  ivay  of  ivarehouse  receipt — Statutes  pertaining  to 
chattel  mortgages  do  not  apply. 

Where  money  had  been  borrowed  upon  a  warehouse  receipt 
as  collateral  security,  it  was  contended  that  the  statute  relating 
to  the  recording  of  chattel  mortgages  applied.  It  was  held, 
that  while  the  transaction  was  of  the  nature  and  effect  of  a 
chattel  mortgage  instead  of  a  mere  pledge,  that  it  could  scarcely 
be  claimed  that  the  delivery  of  the  possession  required  by  the 
statute  was  intended  to  alter  or  enlarge  the  meaning  of  the 
language  there  used  beyond  its  ascertained  legal  sense,  or  to 
abrogate  any  of  the  settled  and  well  recognized  common-law 
modes  of  the  delivery  of  personal  property.  That,  therefore, 
the  relation  of  the  parties  in  respect  to  their  rights  to  the  prop- 
erty is  unaffected  by  the  chattel  mortgage  act.  Spangler  v. 
Butterfield,  6  Colo.  356. 

N. 

Loss  hy  fire — Storing  of  powder  in  a  warehouse,  negligence — 
Proximate  causes — Questions  for  the  jury. 

Where  the  evidence  showed  that  defendants,  who  were  en- 
gaged in  the  business  of  warehousemen,  had  stored  a  large 
quantity  of  powder  in  the  warehouse,  along  with  plaintiff's 
goods,  that  a  fire  ensued  and  that  the  persons  engaged  in  sup- 
pressing the  fire  were  prevented,  by  the  presence  of  the  powder 


COLORADO.  71 

in  the  warehouse,  from  removing  plaintiff's  goods;  in  such  a 
case,  the  question  whether  the  presence  of  the  powder  was  the 
proximate  cause  of  the  loss  of  the  goods  is  one  for  the  jury. 
The  storing  of  powder  in  a  warehouse  situated  in  the  city,  held 
to  constitute  negligence  on  the  part  of  the  warehouseman. 
White  V.  Colorado  Central  R.  R.  Co.,  3  McCrary  (U.  S.  C.  C.) 
559;  writ  of  error  to  U.  S.  Supreme  Court  dismissed,  101  U.  S. 
98. 

Loss  by  theft — Breach  of  agreement  to  compromise — Action 
based  on  agreement  to  compromise  alone. 

The  defendant  warehouseman  was  sued  for  a  sum  of  money 
alleged  to  be  due  the  plaintiff  pursuant  to  an  agreement  made 
between  them  by  which  the  warehouseman  agreed  to  pay  to 
the  plaintiff  a  certain  sum,  as  a  compromise  of  the  claim  of  the 
plaintiff  against  the  defendant,  for  goods  lost  while  stored  in 
the  warehouse  of  the  latter.  It  appeared  that  the  defendant 
had  paid  part  of  the  sum  due  under  such  agreement  and  had 
failed  to  pay  the  balance.  It  was  contended  in  behalf  of  the 
defendant  that  he  was  not  originally  liable,  under  the  law  as  a 
warehouseman,  for  the  loss.  It  was  held  that  the  action  was 
not  brought  upon  the  original  lial^ility  of  the  defendant  but 
upon  the  compromise  agreement  and  that,  therefore,  this  con- 
tention could  not  be  sustained.     Swen  v.  Green,  9  Colo.  358. 

Q- 

Warehouse  receipt — Transfer  of — Requisites — Consideration. 

The  assignment  and  delivery  of  a  warehouse  receipt  passes 
the  title  of  the  goods  represented  to  the  transferee.  In  order 
to  validly  accomplish  this  result  there  must  be:  first,  the  as- 
signment and  delivery  of  the  receipt,  the  property  represented 
thereby  must  be  in  existence  and  stored  at  the  place  desig- 
nated therein;  second,  a  valid  consideration  which  may  con- 
sist of  a  pre-existing  debt,  or  a  transfer  as  collateral  security. 
Hill  V.  Colo.  Nat.  Bank,  2  C.  A.  324. 

Same — Fraudulent  transfer,  question  for  jury. 
The  question  whether  or  not  the  transfer  of  a  warehouse 
receipt  was  procured  with  fraudulent  intent,  is  one  of  fact  for 


72  COLOEADO   DECISIONS. 

the  determination  of   the   jury.     Marsh  v.  Cramer,  16  Colo. 
331. 

Sa77ie—As  collateral— Purchase  price  for  goods  not  paid- 
Pledgee  protected. 

A  warehouseman  issued  his  receipt  to  the  consignee  and  pur- 
chaser of  goods  and  had  no  notice  at  the  time  that  the  purchase 
price  had  not  been  paid.  It  appeared  that  the  purchaser  had 
given  his  note  to  the  vendor  as  payment  for  the  goods.  After 
the  arrival  and  storage  of  the  goods  in  the  warehouse,  the  pur- 
chaser procured  a  loan  and  pledged  the  receipt  as  security 
therefor.  Subsequently  this  loan  was  paid  out  of  the  proceeds 
of  another  loan,  the  warehouse  receipt  being  indorsed  to  the 
second  lender  as  security.  The  warehouseman  had  been  noti- 
fied of  these  transactions  and  had  agreed  to  hold  the  property 
in  accordance  therewith.  Default  being  made  in  the  payment 
of  the  note  for  the  purchase  price,  the  vendor  brought  an  action 
therefor  and  attached  the  property  stored  in  the  warehouse. 
The  pledgee  thereupon  brought  an  action  of  replevin  against 
the  sheriff  and  obtained  a  judgment  for  the  possession  of  the 
property.  It  was  held  on  appeal  that  the  pledgee  was  entitled 
to  the  goods,  that  he  was  a  bona  fide  holder  and  had  taken  with- 
out notice  of  any  claims  by  the  vendor  for  the  purchase  price 
thereof,  that  the  position  of  the  vendor  who  parted  with 
possession  of  the  goods  without  taking  security  therefor  was 
less  grounded  in  equity  than  that  of  the  pledgee  who,  in  good 
faith,  had  advanced  money  upon  the  warehouse  receipt  as 
security.  Spangler  v.  Butter jield,  6  Colo.  356;  First  Nat.  Bank 
V.  Schmidt  et  al,  6  C.  A.  216;  Schmidt  &  Zeigler  v.  First  Nat. 
Bank,  10  C.  A.  261. 

B. 

Bills  of  lading— Exemptions  in— Assent  thereto  implied  by 
acceptance. 

Where  one  accepted  and  acted  under  the  bill  of  lading,  con- 
taining exemptions  against  the  liability  of  the  carrier,  it  was 
held  that  these  actions  constituted  an  implied  assent  to  the  terms 
and  conditions  therein  expressed.  Lindseij  v.  Flebbe  et  al,  5 
C.  A.  218. 


COLORADO.  73 

Same— Same— Not  valid  as  against  fraud,  negligence  or  mis- 
feasance. 

It  is  well  settled  in  Colorado  that  a  common  carrier  cannot 
divest  himself  of  liability  either  by  special  contract  or  notice 
where  damage  or  loss  results  from  his  fraud,  negligence  or  mis- 
feasance. Union  Pac.  Ry.  Co  v.  Rainey  et  at.,  19  Colo.  225; 
Transportation  Co.  v.  Comforth,  3  Colo.  280. 


74  CONNECTICUT    LAWS. 


CHAPTER  VI. 
CONNECTICUT. 

LAWS   PERTAINING  TO   WAREHOUSEMEN. 

Establishment— Receipts : 

Any  person  may  establish  and  maintain  a  public  warehouse, 
and  may  receive  for  storage  into  the  same  any  goods,  wares, 
merchandise,  provisions,  or  other  commodity,  and  shall  issue 
to  the  person  from  whom  he  receives  the  same  warehouse  re- 
ceipts therefor;  and  he  may  issue  warehouse  receipts  for  any 
of  his  own  property  which  is  deposited  in  such  warehouse ;  but 
no  person  shall  issue  any  receipt  for  any  such  property  so  re- 
ceived by  him  on  storage,  or  deposited  by  him  in  such  ware- 
house, unless  he  shall  have  displayed  and  shall  maintain  in  a 
conspicuous  manner,  on  the  front  of  the  building  where  such 
goods  or  other  commodities  are  stored,  the  words  "Pubhc 
Warehouse."     General  Statutes,  1902,  sec.  4919. 

Receipt  to  issue  only  for  goods  received  : 

No  warehouseman  or  other  person  shall  issue  any  receipt, 
acceptance  of  an  order,  or  other  voucher,  for  oi-  upon  any  such 
property,  to  himself  or  to  any  other  person  purporting  to  be 
the  owner  thereof,  or  entitled  or  claiming  the  right  to  receive 
the  same,  unless  such  property  shall  have  been  actually  re- 
ceived into  his  warehouse  and  shall  be  under  his  control  at  the 
time  of  issuing  such  receipt,  acceptance,  or  voucher.  Id. 
sec.  4920. 

Receipt  as  security  for  loan  : 

No  warehouseman  or  other  person  shall  issue  any  receipt 
or  other  voucher  upon  any  such  property  to  any  person  as 
security  for  any  money  loaned  or  other  indebtedness,  unless 
such  property  shall,  at  the  time  of  issuing  such  receipt  or  other 
voucher,  be  in  the  custody  of  such  warehouseman  or  other 
person,  and  in  his  warehouse.     Id.  sec.  4921. 


CONNECTICUT.  76 

Duplicates  to  be  marked : 

No  warehouseman  or  other  person  shall  issue  any  second 
or  duplicate  receipt,  acceptance,  or  other  voucher,  for  or  upon 
any  such  property  while  any  former  receipt,  acceptance,  or 
voucher,  for  or  upon  any  such  property,  or  any  part  thereof, 
shall  be  outstanding  and  uncancelled,  without  writing  or  print- 
ing in  red  ink  across  the  face  of  the  same  the  word  "Duplicate." 
Id.  sec.  4922. 

Goods  receipted  for  not  to  be  sold  : 

No  warehouseman  or  other  person  shall  sell,  or  incumber, 
conceal,  ship,  transfer,  or  in  any  manner  remove  beyond  his 
immediate  control  any  such  property  for  which  a  receipt  shall 
have  been  given  by  him  as  aforesaid,  without  the  written  order 
or  assent  of  the  person  holding  such  receipt.     Id.  sec.  4923. 

Receipts  negotiable  : 

Warehouse  receipts  given  for  any  such  property  stored  or 
deposited  with  any  warehouseman  may  be  transferred  by  in- 
dorsement thereof,  and  any  person  to  whom  the  same  may  be 
so  transferred  shall  be  deemed  to  be  the  owner  of  the  property 
therein  specified,  so  far  as  to  give  validity  to  any  pledge,  lien 
or  transfer,  made  or  created  by  any  such  person;  but  no  prop- 
erty shall  be  delivered  except  on  surrender  and  cancellation 
of  the  original  receipt,  or  the  indorsement  of  such  delivery 
thereon  in  case  of  partial  delivery.  All  warehouse  receipts, 
however,  which  shall  have  the  words  "not  negotiable"  plainly 
written  or  stamped  on  the  face  thereof  shall  be  exempt  from 
the  provisions  of  this  section.     Id.  sec.  4924. 

Property  may  be  recovered  by  process  of  law : 

So  much  of  sections  4923  and  4924  as  forbids  the  delivery 
of  property  except  on  surrender  and  cancellation  of  the  origi- 
nal receipt,  or  the  indorsement  of  such  delivery  thereon,  in 
case  of  partial  delivery,  shall  not  apply  to  property  replevied 
or  removed  by  operation  of  law.     Id.  sec.  4925. 

Civil  and  criminal  liability : 

Every  warehouseman  or  other  person  who  shall  willfully  vio- 
late any  provision  of  this  chapter  shall  be  fined  not  more  than 


76  CONNECTICUT    LAWS. 

one  thousaiKl  dollars,  or  imprisoned  not  more  than  three  years, 
or  both;  and  any  person  aggrieved  by  the  violation  of  any  such 
provision  may  maintain  an  action  against  any  person  violat- 
ing any  of  said  provisions,  to  recover  all  damages,  immediate 
or  consequential,  which  he  may  have  sustained  by  reason  of 
tiny  such  violation,  whether  such  person  shall  have  been  con- 
victed of  such  violation  or  not.     Id.  sec.  4926. 

AVarehoiisemau's  lieu — Sale : 

Every  public  warehouseman,  or  other  person  engaged  in  the 
warehouse  or  storage  business  or  who  shall  have  stored  goods 
for  another,  who  shall  have  in  his  possession  any  such  prop- 
erty l)y  virtue  of  an  agreement  for  the  storage  thereof  with  the 
owner  of  such  property  or  person  having  a  legal  right  to  store 
the  same,  shall  have  a  hen  for  the  agreed  storage  charges  on 
such  property,  or,  where  no  charges  have  been  agreed  on,  for 
the  reasonable  storage  charges  thereon,  and,  when  there  shall 
be  due  and  unpaid  six  months'  storage  charges  thereon,  may 
sell  such  property  at  public  auction  as  hereinafter  directed; 
but  such  sale  shall  not  conflict  with  the  provisions  of  the  ware- 
house receipt  or  other  written  agreement  under  which  such 
goods  were  stored.     Id.  sec.  4927. 

Notice  of  sale : 

A  written  or  printed  notice  of  such  auction  sale,  stating  the 
time  and  place  of  sale  with  a  description  of  the  articles  to  be 
sold,  shall  be  sent,  at  least  thirty  days  before  such  auction 
sale,  by  registered  letter,  addressed  to  the  person  who  left  such 
property  for  storage,  at  his  last  known  place  of  residence,  or, 
in  case  the  war(>houseman  or  storer  of  such  property  has  notice 
from  the  person  who  left  such  property  for  storage  of  a  change 
in  the  title  or  right  of  possession  thereof,  to  the  owner  or  person 
represented  to  be  entitled  to  receive  the  same  on  payment  of 
the  storage  charges,  at  his  last  known  place  of  residence.  Id. 
sec.  4928. 

Additional  notice : 

The  post-office  registry  receipt  for  such  notice,  signed  by  the 
person  who  left  such  property  for  storage,  or  in  case  of  transfer 


CONXECTICUT.  77 

of  title,  by  the  owner  or  person  entitled  to  receive  such  prop- 
erty on  payment  of  storage  charges,  shall  be  sufficient  evi- 
dence of  the  giving  of  legal  notice  of  such  sale,  and  when  such 
receipt  so  signed  is  returned  to  the  sender,  such  sale  may  pro- 
ceed according  to  such  notice.  If  such  receipt  so  signed  be 
not  returned  to  the  sender,  additional  notice  of  such  sale  shall 
be  given  by  j)osting  such  notice  on  the  public  signpost  nearest 
the  place  where  such  sale  is  to  take  place,  and  by  publishing 
a  notice  in  some  newspaper  having  a  circulation  in  the  town 
where  such  sale  is  to  take  place,  once  a  week  for  three  weeks 
successively  before  the  time  fixed  for  such  sale.  Such  notice 
shall  state  the  time  and  place  of  sale  and  contain  a  description 
of  the  articles  to  be  sold  and  the  names  of  the  persons  propos- 
ing to  sell  the  same  and  of  the  person  who  left  the  same  for 
storage,  and  ;dso,  if  the  person  proposing  to  sell  the  same  has 
notice  of  a  change  of  title  or  right  of  possession  of  the  owner 
or  person  represented  to  be  entitled  to  receive  the  same  on  pay- 
ment of  storage  charges.     Id.  sec.  4929. 

Disposition  of  proceeds  of  sale  : 

The  proceeds  of  such  sale,  after  deducting  the  storage  charges 
and  all  expenses  connected  with  such  sale,  which  expenses 
shall  also  be  a  lien  on  the  proceeds  of  such  sale,  shall  be  paid 
to  the  owners  of  the  property  if  called  for  or  claimed  by  them 
at  any  time  within  one  year  from  the  date  of  such  sale;  and  if 
such  balance  is  not  claimed  or  called  for  by  the  owner  within 
said  period  of  one  year,  then  such  balance  shall  escheat  to  the 
state     Id.  sec.  4930. 


78  CONNECTICUT   DECISIONS. 

DECISIONS  AFFECTING  WAREHOUSEMEN. 

A. 

Bailment — Bailee  may  recover  full  value  for  loss  occasioned  by 
third  person — Bailee  represents  owner. 

If  goods  intrusted  to  a  bailee  are  lost  by  the  wrongful  act  of 
a  third  person,  the  latter  is  liable  to  him  for  their  full  value, 
unless  the  owner  interposes  by  a  suit  for  his  own  protection. 
Any  sum  recovered  by  the  bailee,  above  what  is  necessary  to 
compensate  him  for  the  loss  of  his  possession  and  special  prop- 
erty, he  must  hold  in  trust  for  the  owner ;  and  the  third  person 
cannot  complain  that  he  is  made  to  pay  greater  damages  than 
the  bailee  has  sustained,  because  the  bailee,  for  all  the  purposes 
of  such  action,  represents  the  owner  and  occupies  his  place. 
Gillette  v.  Goodspeed,  69  Conn.  363;  White  v.  Webb,  15  Conn.  302. 

Same — Breaking  open  packages,  larceny. 

If  a  carrier,  or  other  bailee,  opens  a  package  of  goods  and 
takes  away  and  disposes  of  them,  or  any  part  of  them,  to  his 
own  use,  it  is  larceny.     State  v.  Fair  dough,  29  Conn.  47. 

Bailment  and  sale  distinguished. 

The  delivery  of  grain  to  a  mill  owner  under  a  contract  con- 
taining a  clause  as  follows:  "And  it  is  further  understood  that 
the  party  of  the  second  part  (mill  owner)  shall  be  responsible 
for  all  grain  sold,  shall  collect  all  the  bills  for  the  same,  and 
shall  sell  to  whom  he  sees  fit."  Held,  the  interpretation  of 
this  clause  of  the  contract  made  it  one  of  bailment  and  not 
of  sale.  That  these  provisions  could  not  be  regarded  as  sur- 
plusage and  that  they  were  entirely  inconsistent  with  the 
contention  that  the  grain  became  the  property  of  the  mill  owner 
under  the  terms  of  the  contract.  Johnson  v.  Allen,  70  Conn. 
738;  Harris  v.  Coe,  71  Conn.  157. 

B. 

Ordinary  care — Removal  of  goods  to  another  place  of  storage. 
A  bailee  for  hire  is  bound  to  exercise  reasonable  and  ordi- 
nary care  in  the  protection  of  goods  intrusted  to  him.     The 


CONNECTICUT.  79 

removal  of  such  goods  to  another  place  where  the  risk  of  loss 
is  not  increased,  but  without  consent  of  the  bailor,  held  not  to 
be  violative  of  his  duty  as  to  ordinary  care.  Bradley  v.  Cun- 
ningham, 61  Conn.  485;  Allen  et  al.  v.  Somers,  73  Conn.  355. 

H. 

Action  for  storage  charges— Absence  of  express  agreement  as  to 

temperature. 

The  plaintiff,  a  warehouseman,  brought  an  action  against  the 
defendant  for  the  recovery  of  storage  charges  for  the  storage  of 
boxes  of  poultry  which  had  been  kept  in  its  cold  storage  rooms. 
The   defendant   admitted   that   the   amount   of   compensation 
claimed  was  due,   but    alleged    by  way  of  counterclaim  that 
the  plaintiff  had  not  used  due  care  in  the  preservation  of  the 
poultry  and  that  as  a  result  it  had  been  spoiled  and  was  of  no 
value  to  the  defendant.     It  appeared  that  there  were  two  kinds 
of  cold  storage  known  in  the  business,  one  known  simply  as 
"cold  storage"  and  the  other  as  a  "freezer,"  and  that  the  tem- 
perature of  a  "freezer"  was  ordinarily  kept  nuich  lower  than 
that  of  the  cold  storage  rooms;  that  the  temperature  of  the  cold 
storage  rooms  was  not  low  enough  to  preserve  poultry  for  any 
great  period  of  time  and  that  it  was  known  to  the  defendant 
that  the  plaintiff's  warehouse  was  not  a  "freezer."     The  trial 
court  held  that  upon  the  facts  found,  the  plaintiffs  had  sus- 
tained the  burden  of  showing  that  they  had  used  ordinary  care 
and  diligence  in  the  preservation  of  the  poultry  and  upon  ap- 
peal it  was  held  that  the  court  did  not  err  in  so  holding.     Allen 
et  al.  V.  Somers,  73  Conn.  355. 

M. 

Conversion— Delivery  by  bailee  of  stolen  property— Knowledge. 

In  a  case  where  stolen  property  was  deposited  with  a  bailee 
and  was  delivered  by  such  bailee  to  the  agent  of  the  bailor,  in 
the  absence  of  knowledge  on  the  part  of  the  bailee  that  the 
goods  were  stolen,  an  action  for  conversion  against  the  ware- 
houseman will  not  lie.     Hill  v.  Hayes,  38  Conn.  532. 

N. 
Cold  storage— Degree  of  cold— Express  agreement. 
In  the  absence  of  an  express  agreement  a  warehouseman  is 


80  CONNECTICUT    DECISIONS. 

only  bound  to  store  goods  intrusted  to  him  for  cold  storage  in 
what  is  commonly  known  as  a  cold  storage  room  or  warehouse. 
TVTiere,  in  an  action  against  a  warehouseman  for  damages  re- 
sulting from  poultry  being  kept  in  too  high  a  temperature,  it 
was  shown  that  the  nature  of  the  cold  storage  rooms  was  known 
to  the  owner  of  the  poultry,  and,  further,  that  the  fact  that  the 
warehouseman  did  not  maintain  a  "freezer"  was  also  known, 
it  was  held  that  he  was  not  liable  for  the  resulting  loss.  Allen 
et  al.  V,  Somers,  73  Conn.  355. 

Insurance — Duty  to  notify  bailee  as  to  existence  of  insurance. 

The  defendant  stored  a  hearse  belonging  to  the  plaintiff  in 
his  stable  and  at  the  time  of  the  contract  there  was  no  special 
agreement  made  as  to  where  the  hearse  was  to  be  kept.  Sub- 
sequently, without  the  knowledge  of  the  plaintiff,  the  defend- 
ant removed  the  hearse  from  his  stable  to  his  barn.  There  was 
no  claim  made  that  the  barn  was  more  exposed  to  fire  or  that 
the  chances  of  loss  or  damages  were  increased  by  the  removal. 
It  appeared  that  the  plaintiff,  without  notifying  the  defendant, 
had  insured  the  hearse  while  stored  in  the  stable.  Subsequent 
to  its  removal  to  the  barn  the  hearse  was  destroyed  by  fire. 
The  policy  of  insurance  became  void  as  a  result  of  the  removal 
of  the  hearse.  It  was  held  that  the  defendant  was  only  bound 
for  reasonable  care  and  that  the  removal  of  the  hearse  from 
the  stable  to  the  barn  was  not  in  controvention  of  the  exercise 
of  such  care  and  that  it  was  the  duty  of  the  plaintiff  to  have 
notified  the  defendant  of  the  insurance.  Bradley  v.  Cunning- 
ham, 61  Conn.  485. 

Q- 

Warehouse  receipts — Negotiability — Bona  fide  holder — No  claim 
for  amount  due  on  purchase  price  nor  for  government  tax — Absence 
of  notice  on  receipt — Estoppel. 

The  plaintiff  became  the  bona  fide  holder  of  a  warehouse  re- 
ceipt and  brought  an  action  against  the  defendant  warehouse- 
man for  the  recovery  of  the  whiskey  represented  thereby.  It 
appeared  that  there  was  an  agreement  between  the  original 
owner  of  the  whiskey  and  the  defendant  pursuant  to  which  the 
whiskey  was  to  remain  in  the  warehouse  until  the  money  wliich 


CONNECTICUT.  81 

the  defendant  had  advanced  to  pay  the  United  States  rev- 
enue tax  thereon  should  be  repaid  to  him.  The  receipt  stated 
that  the  whiskey  was  dehverable  under  the  following  condi- 
tions:  "After  the  payment  of  the  United  States  Internal  Rev- 
enue tax  and  all  other  amounts  due,"  followed  by  "  tax  paid." 
It  was  held  that  the  title  to  the  whiskey  passed  to  the  plaintiff 
upon  the  delivery  to  him  of  the  receipt  and  that  the  defendant 
warehouseman,  as  well  as  the  vendor  of  the  whiskey,  were 
estopped  to  make  any  claim  for  the  amount  advanced  for  the 
payment  of  the  government  tax.  Further,  that  the  expres- 
sion "and  all  other  amounts  due"  could  only  be  held  to  mean 
proper  warehouse  charges.  State  Bank  of  New  York  v.  Water- 
house,  70  Conn.  76. 

Same — Same — Effect  of  statute  as  to  full  negotiability,  qucere. 

In  the  above  case  the  court  declined  to  discuss  whether  or 
not  the  statutes  of  this  state  gave  to  warehouse  receipts  the 
character  of  full  negotiability,  this  question  not  being  then 
presented.     Id. 

B. 

Bill  of  lading — Statements  therein  as  to  value,  binding  on 
shipper. 

Where  one  shipped  property  by  a  common  carrier  and  at  the 
time  of  the  shipment  stated  to  the  agent  of  the  carrier  that 
its  value  was  one  hundred  dollars  and  such  value  is  given  in 
the  bill  of  lading  delivered  to  the  shipper;  it  was  held  that  the 
shipper  is  estopped  to  deny  that  the  value  of  the  property  was 
in  excess  thereof;  further,  that  the  regulation  of  the  railroad 
company  requiring  a  statement  as  to  value  is  a  reasonable 
one  and  the  shipper  of  goods  was  bound  thereby.  Coupland 
V.  Housatonic  R.  R.  Co.,  61  Conn.  531. 

Same — When  open  to  explanation — Statements  contained  therein 
conclusive  on  one  issuing  same. 

It  is  well  settled  that  as  between  a  shipper  and  ship  owner 

the  receipt  in  a  bill  of  lading  is  open  to  explanation.     But 

where   persons   have  been  misled  by  statements  contained  in 

a  false  bill  of  lading,  the  master  or  other  person  issuing  the 

6 


o-i  CONNECTICUT   DECISIONS. 

same  will  be  liable  for  such  misrepresentations.     Relyea  v.  New 
Haven  Rolling  Mill  Co.,  42  Conn.  579. 

Same — Exemption  therein. 

Where  a  bill  of  lading,  issued  by  a  common  carrier,  states 
that  the  carrier  will  not  be  liable  for  loss  or  injury  resulting 
from  certain  specified  causes  therein,  and  in  the  case  of  an  in- 
jury to  a  horse  carried  by  it,  the  contention  is  made  by  the 
carrier  that  it  is  exempt  from  liability  under  this  clause  in  the 
bill  of  lading,  an  instruction  given  to  the  jury,  that  the  carrier 
was  liable,  if  it  should  find  that  tlie  loss  occurred  through  lack 
of  the  exercise  of  ordinary  care  on  the  part  of  the  carrier,  was 
correct.  A  carrier  cannot  stipulate  against  his  own  negligence. 
Crosby  v.  Fitch,  12  Conn.  410;  Welch  v.  Boston  &  Albany  R.  R. 
Co.,  41  Conn.  333;  Camp  v.  Hartford  &  N.  Y.  Steamboat  Co., 
43  Conn.  333;  Candee  v.  A'.  Y.,  N.  H.  &  H.  R.  R.  Co.,  73  Conn. 
667.     But  see  Coupland  v.  Housatonic  R.  R.  Co.,  61  Conn.  532. 

Same — Saine — Liability  may  be  reduced  by  stipulation. 

It  is  competent  for  a  carrier  to  stipulate  for  a  consideration 
for  a  diminished  degree  of  responsibility  fi-om  that  imposed  by 
law,  but  such  stipulation  cannot  be  carried  to  the  extent  of 
granting  the  carrier  immunity  from  the  result  of  its  negligence 
or  want  of  ordinary  care.     Id. 


DELAWARE.  88 


CHAPTER  VII. 
DELAWARE. 

LAWS  PERTAINING  TO  WAREHOUSEMEN. 

An  Act  to  make  negotiable  certain  warehouse  receipts : 

Warehouse  receipts  given  for  any  goods,  wares,  merchandise, 
grain,  flour,  produce,  petroleum,  or  other  commodities  stored 
or  deposited  with  any  warehouseman,  wharfinger  or  other  per- 
son in  this  state,  or  bills  of  lading  or  receipts  for  the  same  when 
in  transit  by  cars  or  vessels  to  any  such  warehouseman,  wharf- 
inger or  other  person,  shall  be  negotiable  and  may  be  trans- 
ferred by  indorsement  and  delivery  of  said  receipt  or  bill  of 
lading;  and  any  person  to  whom  the  said  bill  of  lading  or  receipt 
may  be  transferred  shall  be  deemed  and  taken  to  be  owner  of 
the  goods,  wares,  merchandise  therein  specified,  so  as  to  give 
security  and  validity  to  any  lien  created  on  the  same,  subject 
to  the  payment  of  freight  and  charges  therein;  and  no  property 
on  which  such  lien  may  have  been  created  shall  be  delivered 
by  said  warehouseman,  wharfinger  or  other  person,  except  on 
the  surrender  and  the  cancellation  of  said  original  receipt  or 
bill  of  lading,  or  in  case  of  partial  sale  or  release  of  the  said 
merchandise  by  the  written  consent  of  the  holder  of  said  re- 
ceipt or  bill  of  lading  indorsed  therein;  provided,  that  all  ware- 
house receipts  or  bills  of  lading  which  shall  have  the  words 
"not  negotiable"  plainly  written  or  stamped  on  the  face  thereof 
shall  be  exempt  from  the  provisions  of  this  act.  Laws  of 
Delaware,  vol.  19,  ch.  177,  sec.  1. 

No  warehouseman,  wharfinger  or  other  person  shall  issue  any 
receipt  or  voucher  for  any  goods,  wares,  merchandise,  petro- 
leum, grain,  flour,  or  other  produce  or  commodity  to  any  per- 
son or  persons  purporting  to  be  the  owner  or  owners  thereof, 
unless  such  goods,  wares,  merchandise,  petroleum,  grain,  flour, 
or  other  produce  or  commodity  shall  have  been  actually  re- 


84  DELAWARE    LAWS. 

ceivecl  into  store  or  upon  the  premises  of  such  warehouseman, 
wharfinger  or  other  person  and  shall  be  in  store  or  on  the  prem- 
ises aforesaid  and  under  his  control  at  the  time  of  issuing  such 
receipt.     Id.  sec.  2. 

No  warehouseman,  wharfinger  or  other  person  shall  issue 
any  second  or  duplicate  receipt  for  goods,  wares,  merchandise, 
petroleum,  grain,  flour,  or  other  produce  or  commodity  w^hile 
any  former  receipt  for  any  such  goods,  wares,  merchandise, 
petroleum,  grain,  flour,  or  other  produce  or  commodity  as 
aforesaid,  or  any  part  thereof,  shall  be  outstanding  and  uncan- 
celled without  writing  across  the  face  of  the  same  "duplicate." 
Id.  sec.  3. 

No  warehouseman,  wharfinger  or  other  person  shall  sell  or 
incumber,  ship,  transfer,  or  in  any  manner  remove  beyond  his 
immediate  control  any  goods,  wares,  merchandise,  petroleum, 
grain,  flour,  or  other  produce  or  commodity  for  which  a  receipt 
shall  have  been  given  by  him  as  aforesaid,  whether  received  for 
storage,  shipping,  grinding,  manufacturing  or  other  purposes, 
without  the  return  of  such  receipt.     Id.  sec.  4. 

Any  warehouseman,  wharfinger,  or  other  person  who  shall 
violate  any  of  the  foregoing  provisions  of  this  act  shall  be 
deemed  guilty  of  fraud,  and  upon  indictment  and  conviction 
shall  be  fined  in  any  sum  not  exceeding  one  thousand  dollars 
or  imprisoned  not  exceeding  five  years,  or  both,  in  the  discretion 
of  the  court;  and  all  and  every  person  or  persons  aggrieved  by 
the  violation  of  any  of  the  provisions  of  this  act  may  have  and 
maintain  an  action  at  law  against  the  person  or  persons  vio- 
lating any  of  the  foregoing  provisions  of  this  act  to  receive 
[recover]  all  damages  which  he  or  they  may  have  sustained 
by  reason  of  any  such  violation  as  aforesaid,  before  any  court 
of  competent  jurisdiction,  whether  such  person  shall  have  been 
convicted  of  fraud  as  aforesaid  under  this  act  or  not.     Id.  sec.  5. 


DELAWAKK.  Hf) 

DECISIONS  AFFECTING  WAREHOUSEMEN. 

A. 

Bailment — With  and  without  an  interest. 

In  a  bailment  to  keep  property  without  an  interest  the  bailee 
is  liable  only  for  gross  negligence,  but  with  an  interest  he  is 
bound  to  exercise  reasonable  diligence,  and  he  is  liable  for  slight 
negligence  on  a  special  undertaking.  Chase  v.  Maberry,  3 
Harr.  2m\Culhreth  v.  P.  W.  &  B.  R.  R.  Co.,  3  Houst.  392. 

B. 

Ordinary  care. 

Warehousemen  are  obliged  to  exercise  only  ordinary  care. 
McHenry  v.  P.  W.  &  B.  R.  R.  Co.,  4  Harr.  448;  Chase  v.  Maberry, 
3  Harr.  266;  Culbreth  v.  P.  W.  &  B.  R.  R.  Co.,  3  Houst.  392. 

Same — Reasonable  diligence  defined. 

Reasonable  diligence  is  that  which  a  prudent  man  would  use 
in  respect  to  his  own  property.     Id. 

H. 

Lien — Lost  if  possession  be  surrendered. 

If  the  bailee  surrenders  possession  of  the  pledge  to  the  bailor, 
his  lien  is  gone.     Scott  v.  Heather,  1  Harr.  330. 

I. 

Replevin — No  demand  necessary. 

Under  the  statutory  law  in  the  state  of  Delaware  no  previous 
notice  is  necessary  before  replevin  brought,  although  defend- 
ant may  have  come  into  possession  of  the  goods  lawfully. 
Stockwell  V.  Robinson,  9  Houst.  313. 

R. 

Bill  of  lading — Indorsement — Bona  fide  holder — Fraud. 

The  indorsement  and  delivery  of  a  bill  of  lading  is  equivalent 
to  the  delivery  of  the  goods.  Fraud  on  the  part  of  the  in- 
dorser  cannot  affect  the  title  of  the  indorsee  in  good  faith. 
The  voluntary  delivery  of  a  bill  of  lading  consigning  goods 
"to  order  or  assigns''  confers  all  the  external  indicia  of  the 
right  of  disposal.  Mears  v.  Waples,  3  Houst.  581;  Same  v. 
Same,  4  Houst.  62. 


86  DISTKICT    OF    COLUMBIA   LAWS. 


CHAPTER  VIII. 
DISTRICT  OF  COLUMBIA. 

LAWS   PERTAINING   TO  WAREHOUSEMEN. 

Lien  of  warehousemeu : 

Every  person,  firm,  association,  or  corporation  lawfully  en- 
gaged in  the  business  of  storing  goods,  wares,  merchandise, 
or  personal  property  of  any  description  shall  have  a  lien  first, 
except  for  taxes  thereon,  for  the  agreed  charges  for  storing  the 
same,  and  for  all  moneys  advanced  for  freight,  cartage,  labor, 
insurance,  and  other  necessary  expenses  thereon.  Said  lien  for 
such  unpaid  charges,  upon  at  least  one  year's  storage  and  for 
the  aforesaid  advances  in  connection  therewith,  may  be  en- 
forced by  sale  at  public  auction,  after  thirty  days'  notice  in 
writing  mailed  to  the  last  known  address  of  the  person  or  per- 
sons in  whose  name  or  names  the  said  property  so  in  default 
was  stored,  and  said  notice  shall  also  be  published  for  six  days 
in  a  daily  newspaper  in  the  District  of  Columbia.  And  after 
deducting  all  storage  charges,  advances,  and  expenses  of  sale, 
any  balance  arising  therefrom  shall  be  paid  by  the  bailee  to 
the  bailor  of  such  goods,  wares,  merchandise,  or  personal  prop- 
erty, his  assigns  or  legal  representatives.  D.  C.  Code,  1902, 
sec.  1619. 

Assignee  : 

Said  property  may  be  so  sold  either  in  bulk  or  in  separate 
pieces,  articles,  packages,  or  parcels,  as  will  in  the  judgment  of  the 
lien  holder  secure  the  largest  obtainable  price:  Provided,  That 
if  the  person  or  persons  storing  said  property  shall  have  as- 
signed or  transferred  the  title  thereto  and  have  duly  recorded 
said  assignment  or  transfer  upon  the  books  of  the  storage  ware- 
house, the  written  notice  of  sale  shall  also  be  mailed  to  said 
transferee  or  assignee.     Id.  sec.  1620. 


IHSTKICT    OF    COLUMHIA.  87 

Where  title  in  issue  : 

Whenever  the  title  or  right  of  possession  to  any  goods,  wares, 
merchandise,  or  personal  property  on  storage  shall  be  put  in 
issue  by  any  judicial  proceeding,  the  same  shall  be  delivei-ed 
upon  the  order  of  the  court,  after  prepayment  of  the  storage 
charges  and  cash  advances  then  due,  by  the  person  at  whose 
instance  such  change  of  possession  is  so  ordered,  and  who  shall 
be  entitled  to  recover  such  payment  as  part  of  the  cost  in  such 
proceeding,  or,  if  defeated  therein,  he  shall  be  credited  with 
such  payment  in  taxation  of  costs  against  him.  And  unless 
the  person,  firm,  association,  or  corporation  so  conducting  a 
storage  business  shall  claim  some  right,  title,  or  interest  in  said 
stored  property  other  than  the  lien  hereinabove  authorized, 
he,  it,  or  they  shall  not  bo  made  a  party  to  such  judicial  pro- 
ceedings.    Id.  sec.   1621. 

Warehouseiiieii — Embezzleineut : 

Any  warehouseman,  factor,  storage,  forwarding,  or  commis- 
sion merchant,  or  his  clerk,  agent,  or  employee,  who  with  in- 
tent to  defraud  the  owner  thereof  sells,  disposes  of,  or  applies 
to  his  own  use  any  property  intrusted  or  consigned  to  him,  or 
the  pn)ceeds  or  profits  of  any  sale  of  such  property,  shall  be 
deemed  guilty  of  embezzlement,  and  shall  suffer  imprisonment 
for  not  more  than  ten  years.     Id.  sec.  838. 


Note.     In  New  York  a  statute  slmilai-  to  section  1621  held  unconsti- 
t\)tional.     See  page  .').'>2. 


88  DISTKICT    L>F    COLLMBIA    DECISIONS. 

DECISIONS  AFFECTING  WAREHOUSEMEN. 

A. 

Bailment — Identical  goud^. 

Where  one  receives  certain  bonds,  and  contracts  for  "the 
safe  return  of  said  bonds,"  his  obligation  is  to  return  the  identi- 
cal bonds  and  not  an  equivalent  amount  in  similar  bonds. 
Moses  V.  Taylor.  6  Mack.  255. 

Same — Bailee  cannot  confer  title. 

A  mere  bailee  for  hire,  though  in  possession,  cannot  give  title 
to  a  third  person.     Bridfjet  v.  Cornish,  1  Mack.  29. 

^ame — Wlien  convertible  into  a  sale — Assumpsit. 

Goods  delivered  with  the  understanding  that  the  bailee  may, 
at  his  option,  appropriate  them  to  his  own  use  and  pay  their 
value,  is  a  bailment  convertible  into  a  sale  at  the  option  of  the 
bailee ;  and  when  they  are  so  converted  the  original  bailor  may 
sue  in  assumpsit  for  goods  sold  and  delivered.  Moses  v.  Taylor, 
6  Mack.  255. 

Same — Statute  of  limitations. 

It  is  only  from  the  time  that  the  bailee  sets  up  an  adverse 
claim  to  the  property  that  the  statute  is  put  in  operation  and 
begins  to  run.  Marr  v.  Kiibel,  4  Mack,  577;  Moses  v.  Taylor, 
6  Mack.  255. 

B. 

Conversion — Not  embezzlement. 

A  bailee  who  converts  property  of  his  bailoi-  to  liis  own  use 
is  not  thereby  guilty  of  embezzlement  in  this  jurisdiction,  but 
is  guilty  of  a  breach  of  trust.  Viedt  v.  Evening  Star  Newspaper 
Co..  19  D.  C.  534.     (But  see  sec.  838,  D.  C.  Code,  supra.) 

Storage  charges — When  tender  not  necessary — Replevin. 

Where  a  demand  is  made  upon  a  warehouseman  for  the  de- 
liver}' of  goods  stored  with  him  a  tender  of  the  storage  charges 
is  not  necessary  before  replevin  brought,  where  refusal  to  de- 


DISTRICT    OF   COLU.MHIA.  H9 

liver  is  based  upon  another  and  a  different  ground.     Wall  v. 
Mitkiemcz,  9  App.  D.  C.  109. 

Same — When  charges  not  paid,  writ  will  he  quashed. 

Where  goods  were  replevied  upon  which  storage  charges  were 
due  the  writ  will  be  quashed  upon  tliis  showing,  in  the  absence 
of  fraud,  or  neglect  on  the  part  of  warehouseman.  In  re  Ameri- 
can Security  &  Trust  Co.,  25  W,  L.  R.  733. 

C. 

Safe  deposit — Joint  lessees — Receipt. 

A  receipt,  from  a  trust  company,  which  states  that  a  safe 
deposit  box  is  to  be  opened  only  in  the  presence  of  both  of  the 
two  lessees  thereof,  attempts  to  impose  an  extraordinary  and 
unusual  liability  upon  the  company  which  is  possibly  beyond 
the  rights  of  the  lessees  to  impose.  Carusi  v.  Savary,  9  App. 
D.  C.  330. 

H. 

Lden  for  storage  charges,  paramount — Replevin. 

Where  goods  were  advertised  to  be  sold  for  storage  charges 
and  the  bailor  procured  writ  of  replevin  which  was  served  on 
auctioneer  during  sale,  on  a  motion  to  quash  this  writ  it  was 
held  that  the  act  of  Congress  of  May,  1896,  relating  to  ware- 
housemen was  mandatory  giving  warehousemen  a  lien  for 
their  charges.  The  marshal  was  thereupon  instructed  to  re- 
turn the  goods  to  the  warehouseman.  In  re  American  Security 
&  Trust  Co.,  Ed.  note,  25  W.  L.  R.  733. 

L. 

Trover — Statute  of  limitations. 

In  trover  the  conversion  is  shown  by  proof  of  demand  and 
refusal,  and  limitations  only  run  from  the  date  of  such  demand 
and  refusal.     Moses  v.  Taylor,  6  Mack.  255. 

Detinue — Gist  of  the  action — Pleading. 

In  detinue  the  gist  of  the  action  is  the  wrongful  detainer  and 
not  the  original  taking.  It  lies  against  the  person  who  has  the 
actual  possession  of  the  chattel  or  who  acquired  it  by  any  law- 
ful means,  such  as  bailment,  delivery  or  finding;  therefore,  al- 


90  DISTRICT   OF   COLUMBIA   DECISIONS. 

though  a  declaration  in  detinue  alleges  a  bailment  to  the  de- 
fendant, and  his  engagement  to  redeliver  on  request,  and  the 
defendant  has  pleaded  that  the  bailment  was  the  security  on 
a  loan,  the  plaintiff  may,  without  being  guilty  of  a  departure, 
reply  that  he  tendered  the  debt  and  that  the  defendant  after- 
wards wrongfully  withheld  the  goods.  Wiard  v.  Semken,  2 
App.  D.  C.  424. 

Sayne — No  previous  demand  necessary. 

In  an  action  of  detinue  no  proof  of  a  previous  demand  is 
necessary,  the  serving  of  a  summons  being  a  sufficient  demand. 
Marr  v.  Kubel,  4  Mack.  577. 

M. 

Pledge — Pledge  made  by  pledgee  to  one  in  good  faith — Replevin. 

The  pledgee  of  goods  in  turn  pledged  them  with  another  as 
security  for  the  payment  of  a  personal  obligation  without  any 
notice  that  the  goods  were  held  as  r  pledge.  The  goods  were 
returned  to  the  original  pledgee  prior  to  suit  brought.  In  an 
action  of  replevin,  brought  for  the  recovery  of  the  goods  against 
the  second  pledgee,  the  court  instructed  the  jury  that  if  they 
believed  that  the  defentlant  received  the  goods  in  good  faith, 
not  knowing  in  what  capacity  the  pledgor  held  them,  and  had 
returned  the  goods  to  his  pledgor  before  suit  brought,  that  they 
should  find  for  the  defendant.  Held  on  appeal  that  this  in- 
struction was  correct.     Carpenter  v.  Starr,  1  Mack.  417. 

Same — Detinue — Pleading  and  practice — Confession  and  avoid- 
ance. 

Plaintiff  sued  defendant  in  detinue  and,  in  his  declaration, 
stated  that  the  defendant  detained  the  goods  upon  a  bailment 
for  a  redelivery  upon  request;  the  defendant  pleaded  specially 
that  he  held  the  goods  as  security  for  a  del^t.  Held,  that  the 
plaintiff,  in  his  replication,  could  properly  state  payment  of 
the  debt  in  confession  and  avoidance,  this  not  constituting  a 
variance.  Further  held,  that  in  the  plea  non  detinet  that  the 
defendant  could  not  show  that  he  retained  the  goods  as  security 
for  a  debt  but  that  the  special  plea  was  necessary.  Wiard  v. 
Semken,  2  App.  D.  C.  424. 


DISTKICT    OF    COLUMBIA.  91 

R. 

Bill  of  lading—Exemptions  in  receipt  given  by  expressman- 
Nat  valid  as  against  negligence— Rule  stated. 

If  the  receipt  given  by  an  expressman  contains  the  expression 
that  he  is  not  Hable  as  a  carrier  but  as  a  "forwarder  only"  such 
expression  will  be  construed  by  the  court  as  a  nullity.  The 
law  imposes  upon  expressmen  the  liabilities  of  the  common 
carrier.  A  provision  in  such  a  receipt  that  the  expressman  will 
be  only  liable  for  such  sum  as  the  shipper  states  the  value  of 
the  goods  to  be,  held  to  be  a  reasonable  and  binding  regulation. 
But  no  stipulation  can  be  made  by  an  expressman  or  other 
carrier  which  will  exonerate  him  from  liability  for  the  results 
of  his  negligence,  such  contracts  being  void  as  against  public 
policy.  Gait  Bros.  &  Co.  v.  Adams  Express  Co.,  Mac  A  & 
M.  124.  >         •     ■ 


92  FLORIDA    LAWS. 


CHAPTER  IX. 
FLORIDA. 

LAWS  PERTAINING  TO   WAREHOUSEMEN. 

Sale  of  goods  under  specified  circumstances : 

Warehousemen  and  wharfingers  shall  be  authorized  to  sell 
at  public  auction  all  goods,  wares  and  merchandise  or  other 
articles  commonly  designated  as  "perishable,"  such  as  fruits, 
vegetables,  meats,  and  so  forth,  that  shall  have  been  received 
by  them,  remaining  on  hand  unclaimed  for  the  space  of  not  less 
than  ten  days,  and  all  goods,  wares  and  merchandise,  or  other 
articles  not  perishable,  that  shall  have  been  received  by  them 
and  remaining  on  hand  unclaimed  for  the  space  of  not  less  than 
ninety  days,  but  such  sale  shall,  in  no  instance,  take  place  with- 
out previous  notice  having  been  first  given  for  at  least  two  days 
after  the  expiration  of  said  ten  days,  or  more,  in  the  case  of 
perishable  goods,  wares  and  merchandise,  or  other  articles,  or 
for  at  least  thirty  days  after  the  expiration  of  ninety  days,  or 
more,  in  the  case  of  goods,  wares  and  merchandise,  or  other 
articles  that  are  not  perishable,  said  previous  notice  to  be  given 
in  one  newspaper  published  at  the  place  of  sale,  designating  the 
time  and  place  of  sale.  If  there  is  no  newspaper  published  at 
the  place  of  said  sale,  wherein  the  legal  notice  can  be  given, 
then  public  notice  can  be  given  by  five  written  notices  posted 
in  conspicuous  places  near  the  place  of  sale.  The  owner  or  con- 
signee of  such  goods,  wares  and  merchandise,  or  other  articles, 
may  at  any  time  prior  to  such  sale  come  forward  and  claim  the 
same,  and  after  paying  all  charges  be  entitled  to  restitution. 
Rev.  Stat.  Fla.  1892,  sec.  2339. 

Disposition  of  surplus : 

After  all  charges  upon  said  goods  and  merchandise  or  other 
articles  are  paid  (not  exceeding  the  ordinary  mercantile  charges 
for  such  locality)  should  there  remain  a  surplus,  the  same  shall 
be  placed  in  the  county  treasury  subject  to  the  claim  of  the 


FLORIDA.  93 

owner  of  said  goods,  wares  and  merchandise,  or  other  articles. 
After  the  lapse  of  one  year  from  the  time  of  placing  said  surplus 
in  the  county  treasury,  should  no  person  come  forward  to  claim 
and  receive  the  same,  it  shall  be  applied  by  the  county  commis- 
sioners of  the  county  for  the  relief  of  the  poor  of  such  county. 
Id.  sec.  2340. 

Buriiing  other  buildings  in  tlie  niglit  time  : 

Whoever  willfully  and  maliciously  burns  in  the  night  time  a 
meeting-house,  church,  court-house,  town-house,  college,  acad- 
emy, jail  or  other  buikling  erected  for  public  use,  or  a  banking- 
house,  warehouse,  manufactory  or  mill  of  another,  or  a  barn, 
stable,  shop  or  office  within  the  curtilage  of  a  dwelling  house, 
or  any  other  building,  by  the  burning  whereof  any  building 
mentioned  in  this  section  is  burnt,  in  the  night  time,  shall  be 
punished  by  imprisonment  in  the  state  prison  not  exceeding 
twenty  years.     Id.  sec.  2427. 

Same — Biiruiug  in  day  time  : 

Whoever  willfully  and  maliciously  burns  in  the  day  time  any 
building  mentioned  in  the  preceding  section  shall  be  punished 
by  imprisonment  in  the  state  prison  not  exceeding  ten  years. 
Id.  sec.  2428. 

Embezzlement  by  bailee,  common  carrier  and  hirer: 

If  any  factor,  commission  merchant,  warehouse  keeper, 
wharfinger,  wagoner,  stage  driver  or  other  common  carrier  on 
land  or  on  water,  or  any  other  person  with  whom  any  property 
which  may  be  the  subject  of  larceny  is  intrusted  or  deposited 
by  another,  shall  embezzle  or  fraudulently  convert  the  same, 
or  any  part  thereof,  or  the  proceeds,  or  any  part  thereof,  to  his 
own  use,  or  otherwise  dispose  of  the  same,  or  any  part  thereof, 
without  the  consent  of  the  owner  or  bailor  and  to  his  injury, 
and  without  paying  to  him  on  demand  the  full  value  or  market 
price  thereof;  or  if,  after  a  sale  of  any  of  the  said  property  with 
the  consent  of  the  owner  or  bailor,  such  person  shall  fraudu- 
lently and  without  consent  aforesaid  convert  or  embezzle  the 
proceeds,  or  any  part  thereof,  to  his  own  use  and  fail  or  refuse 
to  pay  the  same  over  to  the  owner  or  bailor  on  demand;  and  if 
any  person  borrows  or  hires  property  aforesaid  and  embezzles 


94  FLORIDA    LAWS. 

oi-  fraudulently  converts  it  or  its  proceeds,  or  any  part  thereof, 
to  his  own  use,  he  shall  be  punished  as  if  he  had  been  con- 
\dcted  of  larceny.     Id.  sec.  2454. 

See  Laws  of  Florida,  1897,  p.  82,  being  chapter  4549  [No.  35,] 
for  an  act  approved  May  8,  1897,  and  entitled  as  follows; 

An  Act  to  Provide  for  the  Regulation  of  Railroad  Schedules, 
Freights,  Express,  Sleeping  Car  and  Passengers'  TariiTs,  and 
Building  of  Freight  and  Passenger  Depots  in  This  State;  to 
Prevent  Unjust  Discrimination  in  the  Rates  Charged  for  the 
Transportation  of  Passengers  and  Freight,  and  to  Prohibit 
Railroad  Companies,  Corporations,  Persons  and  All  Common 
Carriers  in  This  State  from  Charging  Other  Than  Just  and  Rea- 
sonable Rates,  and  to  Enforce  the  Same;  and  to  Prescribe  a 
Mode  of  Procedure  and  Rules  of  Evidence  in  Relation  Thereto; 
and  to  Provide  for  the  Appointment  and  Election  of  Commis- 
sioners, and  to  Prescribe  Their  Duties  and  Powers. 

Bill  of  lading,  etc. : 

Sec.  1.  That  whenever  any  goods,  wares  or  merchandise 
shall  be  shipped  into,  or  out  of,  this  state,  or  between  points 
\vithin  the  limits  of  this  state,  and  the  bill  of  lading  or  other 
evidence  of  shipment  thereof  shall  be  attached  to,  or  trans- 
mitted \\dth,  any  commercial  paper,  for  the  price  or  purchase 
money  of  such  goods,  or  any  part  thereof,  the  collector  or 
holder  of  such  commercial  paper  shall  not  under  any  circum- 
stances, except  by  express  contract  in  writing,  be  held  to  be 
the  warrantor  of  the  quality  or  ciuantity  or  title  of  the  goods, 
wares  or  merchandise  represented  by  the  bill  of  lading,  or  other 
evidence  of  shipment. 

Sec.  2.  All  laws  and  parts  of  laws  in  conflict  with  this  act  are 
repealed. 

Sec.  3.  This  act  shall  go  into  effect  upon  its  approval  by  the 
Governor. 

Approved  June  2,  1899,  Laws,  1899,  No.  99,  p.  144,  sec.  1. 


FLORIDA.  9o 

DECISIONS  AFFECTING  WAREHOUSEMEN. 

A. 

Bailment — Lien  under  common  law. 

Under  the  common  law  the  Hen  of  the  bailee  does  not,  as 
against  the  bailor,  extend  to  the  persons  employed  under  the 
bailee.     Wright  v.  Terry,  23  Fla.  160. 

Same — Gratuitous 

A  bailee  or  factor  is  bound  to  follow  such  instructions  as  are 
given  to  him  by  his  principal,  unless  the  instructions  are  incon- 
sistent with  the  special  agreement  between  them;  and  is  liable 
for  any  injury  resulting  from  a  departure  from  such  instruc- 
tions ;  and  this  liability  is  incurred,  although  the  services  under- 
taken were  gratuitous.     Ferguson  v.  Porter,  3  Fla.  27. 

Same — Transfer  of  title — Bailee's  asserit — Effect  of. 

If  the  bailee,  either  expressly  or  impliedly,  signify  his  assent 
to  the  transfer,  he  makes  himself  the  bailee  of  the  purchaser, 
and  there  is  thereby  such  a  privity  established  between  the 
parties  as  will  be  sufficient  to  sustain  an  action  between  them. 
Mitchell  V.  McLean,  7  Fla.  329. 

B. 

Diligence  defined. 

Common  or  ordinary  diligence,  in  the  sense  of  the  law,  is  such 
as  men  of  common  prudence  generally  exercise  about  their 
own  affairs.     West  v.  Blackshear,  20  Fla.  457. 

N. 

Negligence — Defined — Must  he  proved. 

Negligence  is  the  failure  to  observe  for  the  protection  of  an- 
other's interests  such  care,  precaution  and  vigilance  as  the  cir- 
cumstances justly  demand  and  the  want  of  which  causes  him 
injury.  Negligence  cannot  be  presumed  but  must  be  affirma- 
tively shown.  Jacksonville  Street  Railway  Co.  v.  Chappell,  21 
Fla.  175;  Bucki  v.  Cone,  25  Fla.  1. 


9(5  GEOKGIA    LAWS. 


CHAPTER  X. 
GEORGIA. 

LAWS  PERTAINING  TO  WAREHOUSEMEN. 

Warehouseman : 

A  warehouseman  is  a  depositary  for  hire,  and  is  bound  only 
for  ordinary  diUgence ;  a  failure  to  deliver  the  goods  on  demand 
makes  it  incumbent  on  him  to  show  the  exercise  of  ordinary 
diligence.     Code  Ga.  1895,  sec.  2112. 

Bonded  public  warehouses : 

Any  person  engaged  in  the  business  of  a  warehouseman,  or 
any  corporation  organized  under  the  laws  of  this  state,  and 
whose  charter  authorizes  them  to  engage  in  the  business  of  a 
warehouseman  within  this  state,  may,  if  they  so  desire,  become 
a  bonded  public  warehouseman,  and  authorized  to  keep  and 
maintain  bonded  public  warehouses  for  the  storage  of  cotton 
and  other  goods,  wares  and  merchandise  as  hereinafter  pre- 
scribed, upon  their  giving  bond  hereinafter  required.  Supple- 
ment Van.  E.,  1901,  sec.  6577. 

Bond  to  be  given  : 

Everj^  person  or  corporation  desiring  to  become  a  bonded 
public  warehouseman  under  the  authority  granted  by  the  pre- 
ceding section  shall  give  bond  to  an  amount  based  on  the  esti- 
mated value  said  warehouseman  will  provide  storage  for.  Said 
bond  shall  be  made  payable  to  the  clerk  of  the  superior  court 
of  the  county  wherein  such  bonded  public  warehouse  is  situated, 
and  be  conditioned  for  the  faithful  performance  of  his  duties 
and  liabilities  as  a  bonded  public  warehouseman  under  pro- 
^dsions  of  this  act.  The  surety  or  sureties  upon  said  bond  shall 
be  some  one  or  more  of  the  guarantee,  surety,  fidelity  insurance, 
or  fidelity  and  deposit  companies,  which  are  described  in  sec- 
tion first  of  an  Act  entitled  "An  Act  to  authorize  solvent  guar- 
antee  companies,   surety   companies,    fidelity   insurance   com- 


GEORGIA.  97 

panies,  and  fidelity  and  deposit  companies  to  become  surety 
upon  attachment  bonds,  and  upon  the  bonds  of  city,  county 
and  state  officers,  and  providinfr  remedies  against  such  bonds, 
and  for  other  purposes,"  approved  December  24,  1896,  sec.  6020; 
all  of  the  provisions  of  said  act  being  hereby  made  applicable 
to  the  purposes  and  provisions  of  this  act,  so  far  as  the  same 
are  pertinent  or  applicable  hereto;  and  it  shall  be  the  duty  of 
said  clerk  of  the  superior  court  to  fix  the  amount  of  said  bond, 
and  to  approve  the  surety  or  sureties  thereon.     Id.  sec.  6578. 

Liability  of  principal  and  sureties  : 

Whenever  such  bonded  public  warehouseman  fails  to  perform 
his  duty  as  such,  or  violates  any  of  the  provisions  of  this  act, 
any  person  injured  by  such  failure  or  violation  may  bring  his 
action  in  a  court  of  competent  jurisdiction  against  the  princi- 
pal and  sureties  upon  the  bond  of  said  warehouseman.  Id. 
sec.  6579. 

Insurance  of  stored  property : 

Every  such  bonded  public  warehouseman  shall  cause  to  be 
insured  for  the  benefit  of  whom  it  may  concern,  unless  requested 
not  to  insure  by  the  owner,  all  property  from  the  time  it  is 
stored  with  him,  in  his  said  bonded  public  warehouse,  such  in- 
surance to  be  so  taken  out  as  to  cover  and  protect  said  property 
from  the  time  it  was  so  stored  with  him.     Id.  sec.  6580. 

Receipts  of  warehouseman  : 

Every  such  warehouseman  shall,  except  as  hereinafter  pro- 
vided, give  to  each  person  depositing  property  with  him  for 
storage  a  receipt  therefor,  which  shall  be  negotiable  in  form, 
and  shall  describe  the  property,  distinctly  stating  the  brand  or 
distinguishing  marks  upon  it,  and  if  such  property  is  grain  the 
quantity  and  inspected  grade  thereof.  The  receipt  shall  also 
state  the  rate  of  charges  for  storing  the  property,  and  amount 
and  rate  for  insurance  thereon,  and  also  the  amount  of  the  bond 
given  to  the  clerk  of  the  court,  as  hereinabove  provided;  'pro- 
vided, however,  that  every  such  warehouseman  shall,  upon  re- 
quest of  any  person  depositing  property  with  him  for  storage, 
give  to  such  person  his  non-negotiable  receipt  therefor,  which 
receipt  shall  have  the  words  "non-negotiable"  plainly  written, 
7 


98  GEORGIA    LAWS. 

printed  or  stamped  on  the  face  thereof,  and  provided,  that  no 
assignment  of  such  non-negotiable  receipt  shall  be  effective 
mitil  recorded  on  the  books  of  the  warehouseman  issuing  it; 
provided  further,  that  the  non-negotiable  receipt  may  be  sur- 
rendered at  any  time  by  the  owner  thereof,  and  a  negotiable 
receipt  issued  in  lieu  of  the  same.     Id.  sec.  6581. 

Transfer  of  receipts  : 

The  title  to  cotton  and  other  goods,  wares  and  merchandise 
stored  in  such  bonded  public  warehouses  shall  pass  to  a  pur- 
chaser or  a  pledgee  thereof  by  the  delivery  to  him  of  the  said 
warehouseman's  receipt  therefor  with  indorsement  thereon  to 
such  a  purchaser  or  pledgee  signed  by  the  person  to  whom  such 
receipt  was  originally  given  by  said  warehouseman  or  by  the 
indorsee  of  such  receipt.     Id.  sec.  6582. 

Mixed  irraiu  or  other  property  : 

When  grain  of  other  property  is  stored  in  such  bonded  public 
warehouses  in  such  a  manner  that  different  lots  or  parcels  are 
mixed  together,  so  that  the  identity  thereof  cannot  be  accurately 
preserved,  the  warehouseman's  receipts  for  any  portion  of  such 
grain  or  property  shall  be  deemed  a  valid  title  to  so  much  thereof 
as  is  designated  in  said  receipt,  without  regard  to  any  separation 
or  identification.     Id.  sec.  6583. 

Books  of  warehoiiseinau : 

Eveiy  such  warehouseman  shall  keep  a  book  in  which  shall 
be  entered  an  account  of  all  his  transactions  relating  to  ware- 
housing, storing  and  delivering  cotton,  goods,  wares  and  mer- 
chandise, and  to  the  issuing  of  receipts  therefor,  which  book 
shall  be  OY)cn  to  the  inspection  of  any  person  actually  interested 
in  the  property  to  which  such  entries  relate.     Id.  sec.  6584. 

Storage  sale  for  iioii-payineiit : 

Every  bondefl  public  wai'ehouseman  who  shall  have  in  his 
possession  any  property  by  virtue  of  any  agreement  or  ware- 
house receipt  for  the  same  on  which  a  claim  for  storage  of  the 
same  is  at  least  one  year  ovei'due,  may  proceed  to  sell  the  same 
at  public  auction,  and  out  of  the  proceeds  may  retain  all  charges 


GEORGIA.  99 

for  storage  on  such  goods,  wares,  and  merchandise,  and  any 
advances  that  may  have  been  made  thereon  by  him  or  them, 
with  legal  interest  thereon,  and  the  expenses  of  advertising  and 
sale  thereof.  But  no  sale  shall  be  made  until  after  the  giving 
of  printed  or  written  notice  of  such  sale  to  the  person  or  persons 
in  whose  name  such  goods,  wares  and  merchandise  were  stored, 
requiring  him  or  them,  naming  them,  to  pay  the  arrears  or 
amounts  due  for  such  storage,  and  in  case  of  default  in  so  doing, 
the  goods,  wares  and  merchandise  may  be  sold  to  pay  the  same 
at  a  time  and  place  to  be  specified  in  such  a  notice.  Id.  sec. 
6585. 

Notice  by  wareliouseiiiau  : 

The  notice  required  in  the  last  preceding  section  shall  be  served 
by  delivering  to  the  person  or  persons  in  whose  name  such  goods, 
wares  and  merchandise  were  stored,  or  by  leaving  it  at  his  usual 
place  of  abode,  if  within  the  state,  at  least  thirty  days  before 
the  time  of  such  sale,  and  a  return  of  the  service  shall  be  made 
by  some  officer  authorized  to  serve  civil  processes,  or  by  some 
other  person,  with  an  affidavit  of  the  truth  of  the  return.  If 
the  party  storing  such  property  cannot  with  reasonable  dili- 
gence be  found  within  the  state,  then  such  notice  shall  be  given 
by  publication  once  in  each  week  for  two  successive  weeks,  the 
last  publication  to  be  at  least  ten  days  before  the  time  of  such 
sale,  in  a  newspaper  published  in  the  city  or  town  where  such 
warehouse  is  located ;  or  if  there  is  no  such  paper,  in  one  of  the 
principal  papers  published  in  the  county  in  which  said  city  or 
town  is  located.  In  the  event  that  the  party  storing  such  goods 
shall  have  parted  with  the  same,  and  the  purchaser  shall  have 
notified  the  warehouseman,  with  his  address,  such  notice  shall 
be  given  to  such  person  in  lieu  of  the  person  storing  the  goods. 
Id.  sec.  6586. 

Proceeds  of  sale  ;  entry,  etc.  : 

Such  bonded  public  warehouseman  shall  make  an  entry  in  a 
book  kept  for  the  purpose  of  the  balance  or  surplus  of  proceeds 
of  sale,  if  any,  and  such  balance  or  surplus,  if  any,  shall  be  paid 
over  to  such  person  or  persons  entitled  thereto,  on  demand. 
Id.  sec  6587. 


100  (;f:ok(;ia  laws. 

Penalty  for  unlawful  dispositiou  of  jtijoods  deposited  : 

Whoever  unlawfully  sells,  pledges,  lends,  or  in  any  other 
way  disposes  of,  or  permits,  or  is  party  to  the  unlawful  selHng, 
pletlging,  lending,  or  other  disposition  of  any  goods,  wares, 
merchandise  or  thing  deposited  in  a  bonded  pul)hc  warehouse, 
mthout  the  authority  of  the  party  who  deposited  the  same, 
or  of  the  lawful  transferee  or  indorsee  of  the  receipt  given  there- 
for, shall  be  punished  by  a  fine  not  to  exceed  $2,000,  and  by 
imprisonment  in  the  state  penitentiary  for  not  more  than  three 
years.  But  no  bonded  public  warehouseman  shall  be  liable  to 
the  penalties  provided  in  this  section  unless  with  intent  to  in- 
jure or  defraud  any  person  to  whom  he  so  sells,  pledges,  lends, 
or  in  any  other  way  disposes  of  same,  or  is  a  party  to  the  un- 
lawful selling,  pledging,  lending,  or  other  unlawful  disposition 
of  any  goods,  wares,  merchandise,  article  or  thing  so  deposited 
and  receipted  for  by  him.     Id.  sec.  6588. 

Perishable  property,  sale  of : 

Whenever  a  bonded  public  warehouseman  has  in  his  pos- 
session any  j^roperty  which  is  of  a  perishable  nature,  or  will 
deteriorate  in  value  by  keeping,  or  upon  which  the  charges  for 
storage  will  be  likely  to  exceed  the  value  thereof,  or  which  by 
its  odor,  leakage,  inflammability  or  explosive  nature  is  likely 
to  injure  other  goods,  such  property  having  been  stored  upon 
non-negotiable  receipt,  and  when  said  warehouseman  has  noti- 
fied the  person  in  whose  name  the  [)roperty  was  received  to  re- 
move said  property,  but  such  person  has  refused  or  omitted  to 
receive  and  take  away  such  property,  and  to  pay  the  storage 
and  proper  charges  thereon,  said  bonded  public  warehouseman 
may,  in  the  exercise  of  a  reasonable  discretion,  sell  the  same  at 
public  or  private  sale  without  advertising,  and  the  proceeds, 
if  there  are  any  proceeds,  after  deducting  the  amount  of  said 
storage  and  charges  and  expenses  of  sale,  shall  be  paid  or  cred- 
ited to  the  person  in  whose  name  the  property  was  stored ;  and 
if  said  person  cannot  be  found,  on  reasonable  inquiry,  the  sale 
may  be  mafle  without  any  notice,  and  the  proceeds  of  such  sale, 
after  deducting  the  amount  of  storage,  expenses  of  sale,  and 
othci'  proper  charges,  shall  be  paid  to  the  person  entitled  to 
the  same.     Id.  sec.  6589. 


GEORGIA.  101 

Unsalable  property : 

When  a  bontlcHl  public  warehouseman,  under  the  provisions 
of  the  preceding  section,  has  made  a  reasonable  effort  to  sell 
perishable  and  worthless  property,  and  has  been  unable  to  do 
so  because  of  its  being  of  little  or  no  value,  he  may  then  proceed 
to  dispose  of  such  property  in  any  lawful  manner,  and  he  shall 
not  be  liable  in  any  way  for  property  so  disposed  of.  Id. 
sec.  6590. 

Storage,  liability  for : 

When  a  bonded  public  warehouseman,  under  the  provisions 
of  the  two  preceding  sections,  has  sold  or  otherwise  disposed 
of  property,  and  the  proceeds  of  such  sale  have  not  equalled 
the  amount  necessary  to  pay  the  storage  charges,  expenses  of 
sale,  and  other  charges  against  said  property,  then  the  person 
in  whose  name  said  property  was  stored  shall  be  liable  to  said 
bonded  public  warehouseman  for  any  amount,  which,  added 
to  the  proceeds  of  such  sale,  will  be  sufficient  to  pay  all  the 
proper  charges  upon  said  property,  or  in  case  such  property 
was  valueless  and  there  were  no  proceeds  realized  from  its  dis- 
position, the  person  in  whose  name  said  property  was  stored 
shall  be  liable  to  said  public  warehouseman  for  all  proper  charges 
against  said  property.     Id.  sec.  6591. 

Definition : 

A  bailment  is  a  delivery  of  goods  or  property  for  the  execu- 
tion of  a  special  object,  beneficial  either  to  the  bailor  or  bailee, 
or  both;  and  upon  a  contract,  express  or  implied,  to  carry  out 
this  object  and  dispose  of  the  property  in  conformity  with  the 
purpose  of  the  trust.     Code  of  Ga.  1895,  sec.  2894. 

Property  in  bailee : 

In  all  cases  the  bailee,  during  the  bailment,  has  a  right  to 
the  possession  of  the  property,  and  in  most  cases  a  special  right 
of  property  in  the  thing  bailed.  For  a  violation  of  these  rights 
by  any  one  he  is  entitled  to  his  action.     Id.  sec.  2895. 

Burden  of  proof : 

In  all  cases  of  bailment  after  proof  of  loss,  the  burden  of  proof 
is  on  the  bailee  to  show  proper  diligence.     Id.  sec.  2896. 


102  GEORGIA    LAWS. 

Care  aud  diligeuce : 

All  bailees  are  required  to  exercise  care  and  diligence  in  pro- 
tecting and  keeping  safely  the  thing  bailed.  Different  degrees 
of  diligence  are  required  according  to  the  nature  of  the  bail- 
ments.   Id.  sec.  2897. 

Ordinary : 

Ordinary  diligence  is  that  care  which  every  prudent  man 
takes  of  his  own  property  of  a  similar  nature.  The  absence 
of  such  dihgence  is  termed  ordinary  neglect.     Id.  sec.  2898. 

Extraordinary : 

Extraordinary  diligence  is  that  extreme  care  and  caution 
which  very  prudent  and  thoughtful  ]Dersons  use  in  securing 
and  preserving  their  own  property.     Id.  sec.  2899. 

Gross  neglect : 

Gross  neglect  is  the  want  of  that  care  which  every  man  of 
common  sense,  how  inattentive  soever  he  may  be,  takes  of  his 
own  property.     Id.  sec.  2900. 

Imputable  negligence : 

For  the  negligence  of  one  person  to  be  properly  imputable 
to  another,  the  one  to  whom  it  is  imputed  must  stand  in  such 
a  relation  of  privity  to  the  negligent  person  as  to  create  the 
relation  of  principal  and  agent.  In  a  suit  by  an  infant  the 
fault  of  the  parents,  or  of  the  custodians  selected  by  the  par- 
ents, is  not  imputable  to  the  child.    Id.  sec.  2901. 


GEOIUMA.  108 


DECISIONS  AFFECTING  WAREHOUSEMEN. 

A. 

Bailment — Essence  of  contract. 

The  essence  of  a  contract  of  bailment  on  the  part  of  a  bailee 
is  for  diligence  of  the  required  degree,  and  when  he  has  used 
such  diligence  his  contract  is  fulfilled  and  he  discharged  al- 
though the  property  may  be  lost  during  his  custody  of  it. 
Merchants  Nat.  Bank  of  Savannah  v.  Gnilmartin,  88  Ga.  797. 

Same — Special  deposit  in  bank — Care  in  selecting  employees. 

A  bank  is  not  liable  for  the  loss  of  a  special  deposit,  for  which 
it  receives  no  compensation,  by  the  theft  of  its  cashier  or  other 
servant,  provided  it  has  not  been  guilty  of  gross  negligence 
in  any  respect.  The  negligence  of  the  bank  may  consist  in  re- 
taining an  unfit  person  in  the  })osition  of  cashier  or  other  posi- 
tion. But  when  it  does  its  full  duty  in  selecting  the  proper 
person  and  in  not  disregarding  indications  of  dishonesty,  which 
ought  to  arouse  suspicion  and  investigation,  it  is  not  responsi- 
ble to  one  who  had  obtained  from  it  the  favor  of  keeping  spe- 
cific property  without  recompense,  although  the  cashier  or  other 
employee  steal  the  property  so  put  in  its  charge.  Id.  (This 
case,  on  the  ground  of  improper  instruction  to  the  jury,  was 
sent  back  for  a  new  trial  and  the  plaintiff  again  obtained  a 
verdict  which  on  appeal,  reported  in  93  Ga.  503,  was  affirmed, 
the  court  holding  the  bank  guilty  of  a  want  of  diligence.) 

.  Same — Action  by  bailor  or  bailee — Measure  of  damages. 

In  an  action  of  trover  by  a  bailee,  or  special-property  man, 
against  the  general  owner,  the  measure  of  his  damages  is  the 
value  of  his  special  property  only;  but  when  the  action  is  by 
the  bailee  or  special-property  man,  against  a  stranger  or  wrong- 
doer, the  plaintiff  is  entitled  to  recover  the  full  value  of  the 
property  converted  by  the  defendant  and  hold  the  balance, 
beyond  his  own  interest,  for  the  general  owner.  Schley  v.  Lyon 
&  Rutherford,  Trustees,  6  Ga.  530. 

Same — Trespass  against  bailed  property — Rights  of  action. 
In  all  cases  of  bailment,  where  the  property  is  in  possession 


104  GKOKGTA    r)EClSIONS. 

of  the  bailee,  and  a  trespass  is  committed  during  the  continu- 
ance of  the  baihnent,  this  gives  the  bailee  a  right  of  action  for 
the  interference  with  his  special  property,  and  a  concurrent 
right  to  the  owner  or  bailor,  for  the  interference  with  his  gen- 
eral property.  Code,  sees.  2141,  2191,  3030;  Lockhart  v.  West- 
ern &  Atlantic  R.  R.  Co.,  73  Ga.  472. 

Same — Statute  of  limitations  in  case  of — Mutual  account. 

Where  a  warehouseman  and  one  of  his  customers  maintained 
a  mutual  account  which  had  been  running  for  a  period  of  over 
six  years,  it  was  held  that  the  statute  of  Umitations  did  not  be- 
gin to  run  until  the  last  charge  or  item  of  the  account.  Flourn'oy 
&  Epping  v.  Wooten  et  al.,  71  Ga.  168. 

Same — Conversion — When  statute  of  limitations  begins  to  run. 

The  statute  of  limitations  begins  to  run  when  the  bailee  for 
hire  holds  the  goods  adversely  to  the  title  of  the  bailor;  the 
possession  immediately  ceases  to  be  adverse  in  consequence  of 
the  return  of  the  bailee  to  his  duty  as  such.  Harral  v.  Wright 
et  al,  Exrs.,  57  Ga.  484;  Blount,  Admr.,  v.  Beall,  95  Ga.  182. 

Evidence — Negligence — Question  of  law. 

In  an  action  against  a  bailee,  the  question  of  negligence  is 
a  question  of  law  for  the  court  to  determine,  but  the  facts,  from 
which  it  is,  or  is  not,  inferred,  must  be  found  by  the  jury.  Morel 
v.  Roe,  R.  M.  Charl.  19. 

Same — When  burden  of  proof  on  bailee. 

In  all  cases  of  bailment,  after  proof  of  loss,  the  burden  of 
proof  is  on  the  bailee  to  show  proper  diligence.  Civil  Code, 
sec.  2696.  Massilion  Engine  &  Thrasher  Co.  v.  Akerman  et  al., 
110  Ga.  570;  Concord  Variety  Works  v.  Beckham,  112  Ga.  242. 

B. 

Warehouseman — Ordinary  care — Duty  of,  defined. 

A  warehouseman  is  only  bound  to  exercise  that  degree  of 
ordinary  diligence  in  taking  care  of  property  stored  with  him 
which  a  prudent  man  would  exercise  in  taking  care  of  his  own 
property.  Cunningham  v.  Franklin,  Read  &  Co.,  48  Ga.  531; 
Merchants  Nat.  Bank  of  Savannah  v.  Guilmartin,  93  Ga.  503. 


GEORGIA.,  105 

Same — Holds  for  owner. 

Goods  in  the  possession  of  a  warehouseman  are  legally  in 
the  possession  of  the  owner.  Sirift,  Murphy  &  Co.  v.  Mc- 
Lemore,  48  Ga.  63;  Zellner  v.  Mobley,  84  Ga.  746;  Flournoy, 
Hatcher  &  Co.  v.  Wardlaw,  67  Ga.  378. 

Same — Prima  facie  case. 

Where  a  bailment  had  been  established,  a  refusal  of  delivery 
upon  demand  likewise  shown,  and  the  damage  proven,  the  plain- 
tiff had  made  his  case  and,  uncontradicted,  he  was  entitled  to 
recover.     Nail  v.  Farmers  Warehouse  Co.  et  al.,  95  Ga.  770. 

Goods  deposited  hy  agent — Where  personally  liable  for  storage 
charges — Election. 

An  agent,  who  had  purchased  cotton  for  his  principal,  stored 
the  same  with  a  warehouseman  and  did  not  disclose  the  fact 
that  he  was  acting  as  an  agent,  in  such  a  case,  the  warehouse- 
man can  hold  him  personally  responsible  for  all  storage  charges. 
If  the  warehouseman  afterwards  elects  to  hold  the  principal  he 
thereby  releases  the  agent,  but  the  mere  fact  that  the  ware- 
houseman having  presented  his  bill  for  charges  to  the  agent  and 
upon  receiving  a  notification  that  the  agent  declined  to  pay, 
thereupon  requests  the  attorney  for  the  agent  to  forward  the 
bill  to  the  principal,  this  does  not  constitute  such  an  election 
as  will  hold  the  principal  and  release  the  agent.  Garrard, 
Executor,  v.  Moody,  48  Ga.  96. 

Dispute  as  to  title — When  right  to  file  interpleader  exists. 

A  warehouseman  sold  goods  deposited  with  him,  pursuant  to 
what  he  claims  was  an  order,  from  his  bailor,  to  sell.  The 
purchaser  of  the  cotton  subsequently  stores  the  same  with  the 
warehouseman,  the  original  bailor  denies  having  given  the  ware- 
houseman powe  •  to  sell,  and  claims  the  cotton  as  his  own. 
Held,  that  the  above  facts  are  not  such  as  to  allow  the  ware- 
houseman to  file  a  bill  of  interpleader,  compelling  the  original 
bailor  and  the  purchaser  to  litigate  between  themselves  as  to 
the  title  of  the  cotton.  The  facts  do  not  present  a  case  in  which 
an  interpleader  will  lie,  for  the  reason  that,  if  the  warehouseman 
acted  without  proper  authority  in  the  sale  of  the  cotton,  he  is 


106  OK(»i;(;iA   dkcisions. 

liable  in  damages  to  the  original  bailor.  If,  under  the  facts  in 
the  given  case,  a  party  may  be  a  wrongdoer  against  either  of 
the  claimants  of  the  property,  a  bill  of  interpleader  cannot  be 
filed.     Tyus  &  Beall  v.  Rust,  Survivor,  37  Ga.  574. 

Landlord's  debt — Tenant's  cotton  cannot  be  taken. 

A  landlord,  by  inadvertence,  deposited  cotton  belonging  to 
his  tenant  with  a  warehouseman  to  whom  the  landlord  was 
indebted;  the  warehouseman  sought  to  apply  the  cotton  to 
his  debt.  Held,  that  the  tenant  had  a  right  of  action  for  the 
cotton  against  the  warehouseman.  Flournoy,  Hatcher  &  Co.  v. 
Wardlaw,  67  Ga.  378. 

Sale  of  goods  while  in  warehouse — Best  evidence. 

Where  goods  have  been  sold  while  deposited  in  a  warehouse 
and  the  purchaser  thereof  claims  that  the  warehouse  receipt 
was  duly  assigned  to  him,  in  an  action,  by  said  purchaser, 
against  the  warehouseman  for  the  recovery  of  the  goods,  he 
must  produce  the  receipt  or  else  satisfactorily  account  for  its 
non-production.  The  production  of  the  Avarehouse  receipt  is 
the  best  evidence  of  title  to  the  goods  represented  thereby. 
Patten  v.  Baggs,  43  Ga.  167. 

Conversion — Sale  on  credit  when  instructed  to  sell  for  cash  only, 
not  a  conversion. 

Where  an  agent,  who  is  in  possession  of  goods  belonging  to 
his  principal  for  the  purpose  of  sale,  sells  the  same  on  credit,  it 
will  not  constitute  a  conversion  although  it  be  shown  that  under 
the  agreement  between  them,  the  agent  was  authorized  to  sell 
for  cash  only.     Loveless  v.  Fowler,  79  Ga.  134. 

Taxable  debt — Right  to  goods  stored  does  not  become  such  until 
demand  and  refusal. 

Defendants  had  undertaken,  by  contract,  to  keep  safely  and 
deliver  to  the  plaintiff  on  demand  two  bales  of  cotton.  Two 
years  elapsed  before  demand  made;  held,  that,  under  the  pro- 
visions of  the  act  of  October  13,  1.S70,  the  plaintiff's  right  to  the 
possession  of  this  property  did  not  become  a  taxable  debt  within 
the  meaning  of  said  act  until  he  had  demanded  the  cotton  of 


GEORGIA.  107 

the  defendant  and  had  met  witli  a  refusal  to  deliver.     Dawson 
V.  Ivy  &  Garrard,  45  Ga.  22. 

Contract  of  leasee  of  warehouse  acting  in  capacity  of  agent  and 
in  individual  capacity — Individually  liable  to  depositors. 

Where  in  an  action  against  several  persons,  doing  business 
as  warehousemen,  the  evidence  showed  that  the  plaintiff  de- 
posited several  bales  of  cotton  with  them  and,  further,  that 
the  defendants  had  contracted  in  their  capacity  as  a  conunittee, 
for  the  purpose  of  running  an  alliance  warehouse,  and  also  in- 
dividually. The  contract  of  rental  was  executed  not  only  in 
their  representative  but  also  in  their  personal  capacity.  A 
bailment  was  shown,  refusal  of  the  defendants  to  deliver  the 
cotton  upon  demand  and  the  plaintiff  had  proved  his  damages. 
After  such  a  showing  the  court  granted  a  nonsuit.  It  was  held 
that  the  plaintiff  had  established  a  prima  facie  case,  that  as 
the  evidence  was  uncontradicted  he  was  entitled  to  judgment. 
Therefore,  the  judgment  of  the  court  below  was  reversed.  Nail 
v.  Farmers'  Warehouse  Co.  et  al.,  95  Ga.  770. 

Delivery — Wrongful  where  made  to  the  owner's  broker  in  the 
absence  of  express  authority. 

In  an  action  against  a  railroad  company,  liable  as  a  ware- 
houseman, it  appeared  that  it  had  tendered  the  goods  to  the 
consignee,  who  had  refused  to  I'eceive  them.  The  carrier's  de- 
fense was  that  it  had  delivered  the  goods,  pursuant  to  instruc- 
tions given  it  by  the  plaintiff's  broker,  and  that  the  consignee 
had  directed  defendant  to  consult  with  such  broker.  It  was 
shown  that  it  was  a  custom  for  carriers  to  follow  the  direc- 
tions of  consignees'  brokers  in  case  of  refusal  to  receive  goods. 
It  was  held  that  the  defendant  had  violated  its  duty  to  the  con- 
signor in  delivering  the  goods  pursuant  to  instructions  received 
from  the  plaintiff's  broker,  that  the  evidence  failed  to  show  any 
lawful  excuse  or  justification  for  such  delivery,  and  that  ordi- 
nary diligence  would  have  required  the  defendant  to  go,  at 
least  one  step  further,  and  obtain  satisfactory  evidence  that 
the  broker  in  reality  had  the  authority  to  direct  the  delivery 
of  the  goods  in  behalf  of  the  plaintiff.  American  Sugar  Re- 
fining Co.  V.  McGhee,  96  Ga.  27. 


108  GEORGIA   DECISIONS. 

£. 

Factors — Must  act  strictly  within  owners'  instructions — Local 
custom  cannot  change  law. 

The  plaintiffs,  factors  and  cotton  brokers,  brought  an  action 
against  the  defendants  on  a  promissory  note  and  on  money  due 
on  an  account  between  them.  The  defendant  pleaded  payment 
of  the  note  and  recoupment  as  to  the  whole  amount  claimed. 
On  the  trial  of  the  case,  the  defendants  proved  that  they  had 
shipped  a  large  quantity  of  cotton  to  the  plaintiffs  with  instruc- 
tions to  sell  the  same  and  to  apply  the  proceeds  thereof  to  the 
payment  of  the  note  sued  on.  And,  further,  that  the  sale  had 
been  made  but  not  pursuant  to  the  instructions  of  the  defend- 
ant, and  that  the  sum  actually  realized  was  nearly  as  great  as 
the  amount  claimed  by  the  plaintiffs,  and  that  had  plaintiffs 
followed  the  instructions  of  the  defendants  in  regard  to  the  sale, 
the  amount  realized  therefrom  would  have  been  in  excess  of 
the  sum  claimed  by  the  plaintiffs.  The  plaintiffs  contended 
that  as  they  had  made  advances  on  the  cotton  they  were  not 
bound  to  obey  the  instructions  of  the  defendants  in  regard  to 
the  sale  thereof  and  that  this  was  a  custom  and  usage  in  the  city 
where  the  transaction  took  place.  The  court  held  that  this 
contention  could  not  be  sustained,  that  it  was  the  duty  of  the 
factor  to  strictly  comply  with  the  instructions  of  his  principal 
and  that  it  was  error  in  the  trial  court  not  to  instruct  the  jury, 
that  if  they  believed  that  the  cotton  was  shipped  to  the  plain- 
tiffs with  the  directions  as  alleged,  and  that  if  plaintiffs  had 
sold  the  said  cotton  and  it  would  have  brought  enough  to  pay 
off  the  note,  that  this  was  an  extinguishment  of  the  debt  and 
the  plaintiffs  could  not  recover  thereon.  Hatcher  &  Baldwin 
V.  Corner  &  Co.,  73  Ga.  418. 

Same — Sale  to  recover  advances — Effect  of  death  of  principal. 

A  factor,  who  has  been  intrusted  with  the  possession  of  goods 
with  directions  to  sell  the  same  at  such  time  as  he  thought  best, 
has  a  right  to  sell  a  portion  thereof  in  order  to  reimburse  him- 
self for  advances  made.  The  bailor's  confidence  being  reposed 
in  the  factor,  he  may,  in  the  absence  of  instructions,  exercise 
his  discretion  according  to  the  general  usage  of  the  trade;  but 
in  return,  greater  and  more  skillful  diligence  is  required  of  him, 


GEORGIA.  100 

and  the  most  active  good  faith.  Where  there  has  been  no  ad- 
vances made,  the  power  to  sell  is  revocable  at  the  pleasure  of 
the  owner,  but  not  so  where  the  factor  has  made  advances,  or 
incurred  expenses  in  relation  to  the  property,  then  the  power 
of  sale  is  irrevocable,  as  to  the  extent  of  such  advances  and  ex- 
penses, and  the  factor  has  a  lien  on  the  goods  for  such  sums. 
Therefore,  where  advances  have  been  made,  the  power  of  sale 
to  such  an  extent  is  not  revoked  by  the  death  of  the  owner. 
Willingham  v.  Rushing  et  al.,  105  Ga.  72. 

Same — Pledge  by. 

Where  a  factor,  who  was  also  a  warehouseman  and  commis- 
sion merchant,  issued  a  receipt  for  cotton,  intrusted  to  him  for 
sale,  to  himself  and  in  his  own  name,  and  pledged  the  same  with 
a  bank  as  security  for  a  personal  loan  to  him,  it  was  held  that 
the  bank,  as  pledgee,  acquired  no  title  as  against  a  subsequent 
purchaser  of  the  cotton  who  bought  in  good  faith  from  the 
factor.  National  Exchange  Bank  v.  Graniteville  Mfg.  Co.,  79 
Ga.  22. 

H. 

Storage  charges. 

A  warehouseman  is  not  obliged  to  dehver  goods  until  his 
storage  charges  are  paid.  Tyns  v.  Rust,  43  Ga.  529;  Dixon  v. 
Central  Ry.  Co.,  110  Ga.  173. 

Same — Cannot  he  changed  by  notice  exhibited  in  warehouse 
subsequent  to  date  of  storage. 

A  warehouseman  received  cotton  for  storage  when  the  rate 
was  twenty-five  (25)  cents  for  the  first  month  per  bale  and 
twelve  and  one  half  (12^)  cents  for  each  subsequent  month 
until  the  cotton  was  removed;  afterward  the  warehouseman 
posted  a  notice  in  his  warehouse,  in  which  it  was  stated  that  the 
charge  on  all  goods  stored  should  be  fifty  (50)  cents  for  the  first 
month  and  twenty-five  (25)  cents  for  all  following  months.  It 
was  admitted  by  plaintiff  that  it  was  customary  among  ware- 
housemen that  no  change  in  the  charge  of  storage  was  ever 
made  upon  goods  already  stored;  under  this  admission,  it  was 
held  that  the  warehouseman  could  only  recover  charges  at  the 


110  GI-:OK(ilA    DECISIONS. 

rate  prevailing  at  the  time  of  storage.    Garmany  v.  Rust,  35  Ga. 
108. 

Warehouseman^ s  lien — Superior  to  claim  for  advances  and 
charges. 

Where  it  appeared  that  a  warehouseman  received  cotton  in 
liis  warehouse  without  notice  of  any  lien  or  charge  against  the 
same,  and  it  subsequently  appeared  that  the  cotton  was  pro- 
duced on  rented  ground,  the  owner  of  which  had  an  interest  in 
such  cotton,  and  further,  that  the  seller  of  fertilizer  also  had  a 
claim  against  the  cotton,  it  was  held  that  the  lien  of  the  ware- 
houseman, for  his  lawful  charges,  was  superior  to  any  of  the 
aforesaid  advances  and  charges.  Clark  &  Cole  v.  Dobbins,  52 
Ga.  656;  Beall  v.  Butler,  54  Ga.  43. 

Same — Bailor  personally  liable  for  charges. 

Any  addition  to  a  lien  which  a  warehouseman  has  for  his  law- 
ful charges  for  storage,  the  bailor  is  personally  liable  therefor. 
Garrard,  Executor,  v.  Moody,  48  Ga.  96. 

Factor^ s  lien — Possession. 

Possession  of  the  property  is  necessary  to  create  the  factor's 
lien,  but  that  may  be  actual  or  constructive.  Kollock  v.  Jack- 
son, 5  Ga.  153. 

Same — Judgment  paramount. 

Judgments  bind  all  the  property  owned  by  the  defendant, 
from  their  date,  as  well  that  subsequently  acquired  as  that 
owned  at  the  time  of  signing  the  judgment;  and  the  lien  of  judg- 
ments has  precedence  over,  and  is  paramount  to  the  lien  of  a 
factor  upon  property  in  his  possession.     Id. 

Same — Same — Principal  and  agent — Set-off — Pleading. 

A  principal  is  liable  to  his  factor  for  all  commissions,  expenses, 
advancements  and  disbursements,  made  or  accruing  in  the 
course  of  the  agency,  on  his  account  and  for  his  benefit.  And 
the  factor  has  also  a  lien  ujion  the  goods  in  his  hands,  and  their 
proceeds,  if  lawfully  sold  for  cash,  or  the  securities  for  which 
they  were  sold,  if  sold  for  credit,  to  secure  to  him  such  expenses^ 


(}!-:( HKJIA.  Ill 

disbursements,  advancements  and  commissions.  Both  the  lien 
and  the  personal  liability  of  the  principal  may  be  waived.  The 
factor  may  detain  the  goods  in  satisfaction  of  his  lien,  or  he  may 
sue  his  principal  for  his  commissions,  disbursements  and  ex- 
penditures, and  when  himself  sued  by  his  principal,  he  may  set 
them  up  in  reduction  of  the  plaintiff's  demand,  without  plead- 
ing them  as  a  set-off.  But  the  liability  of  the  i)rincipal  goes 
upon  the  ground  that  they  were  made  and  incurred  in  good 
faith,  reasonably  and  without  any  default,  on  the  part  of  the 
factor.     Brown,  Shipley  &  Co.  v.  Clayton,  12  Ga.  564. 

K. 

Garnishment  of  goods  while  in  warehouse — Delivery  of  goods 
after  service  of  summons — Warehouseman  liable. 

The  storing  of  goods  with  a  warehouseman  is  a  contract  of 
bailment,  and  the  receipt  is  the  mere  evidence  thereof.  Where 
a  warehouseman  gives  a  receipt  for  goods  stored  by  A,  in  which 
he  promises  to  deliver  the  goods  to  A,  or  the  l^earer  of  the  re- 
ceipt, and  is  subsequently  served  with  summons  of  garnish- 
ment by  a  creditor  of  A,  Md,  that  he  is  not  relieved  from  lia- 
bility, by  the  delivery  of  the  goods  to  the  holder  of  the  receipt, 
to  whom  it  was  transferred  after  service  of  the  garnishment. 
Smith  V.  Picket,  7  Ga.  104. 

L. 

Trover— Actual  conversion  must  he  shown— Sale  on  credit  when 
cash  sale  only  authorized — Demand. 

The  defendant  was  intrusted  with  certain  goods  belonging 
to  the  plaintiff  for  the  purpose  of  cash  sale.  In  an  agreed  state- 
ment of  the  facts  in  the  case  it  was  stated  that  the  defendant 
sold  part  of  the  goods  on  credit.  There  was  no  evidence  to 
show  what  part  of  the  goods  were  sold,  nor  that  there  had  been 
a  demand  made  prior  to  action  l:)rought.  Held,  on  the  above 
stated  facts,  that  there  had  been  no  conversion  shown;  that 
where  one  is  intrusted  with  goods  belonging  to  anothei-  for  the 
purpose  of  selling  the  same  for  cash  that  a  sale  on  credit  will  not 
constitute  a  conversion  l)ut  is  simply  a  breach  of  instructions. 
Title  would  pass  to  the  purchaser  in  such  a  case  and  a  sale  which 
passes  title  is  not  a  conversion,  although  it  may  be  an  abuse  of 


Il-l  GEORGIA    DECISIONS. 

authority.  Trover  will  not  lie  in  such  case  but  the  proper  rem- 
edy of  the  plaintiff  should  have  been  an  action  on  the  case  for 
violation  of  instructions  or  breach  of  contract.  Loveless  v. 
Fowler,  79  Ga.  134. 

Same — Pledgee  of  warehouse  receipt  may  maintain  trover. 

Where  one  holds  a  warehouse  receipt  as  pledgee  and  the  w^are- 
houseman  refuses  to  deliver  the  goods  on  demand,  such  pledgee 
may  maintain  the  action  of  trover  against  the  warehouseman 
for  he  stands  in  the  same  privileged  position  as  a  bona  fide  pur- 
chaser for  value  of  the  receipt.  Citizens  Banking  Co.  v.  Pea- 
cock &  Carr,  103  Ga.  171. 

M. 

Pledge — Delivery  by  warehouse  receipt. 

The  delivery  of  a  warehouse  receipt,  being  the  symbolical  de- 
livery of  the  property  represented  thereby,  is  sufficient  to  create 
a  valid  pledge  of  the  property.  Citizens  Banking  Co.  v.  Peacock 
&  Carr,  103  Ga.  171. 

Warehouseman' s  books — Best  evidence  as  to  weight  of  stored 
cotton. 

Where  cotton  is  weighed  by  warehousemen,  and  an  account 
of  the  weight  is  rendered  the  depositor,  their  books  and  not  his 
are  the  best  evidence  as  to  its  w^eight.  Cloud  &  Shackelford  v. 
Hartridge  &  Hartridge,  Admrs.,  28  Ga.  272. 

N. 

Loss  by  fire — Warehouseman  not  responsible. 

A  warehouseman  is  not  responsible  for  goods  destroyed  by 
fire  unless  negligence  be  shown  upon  his  part.  Brunswick 
Grocery  Co.  v.  Brunswick  &  Western  R.  R.  Co.,  6  Ga.  270. 

Act  of  war — Not  trespass. 

Where  an  officer  in  the  Confederate  Army  received  property 
and  removed  it  to  prevent  it  from  falling  in  the  hands  of  the 
Union  forces,  it  was  held  that  this  was  not  trespass,  that  cotton 
w\as  contraband  of  war;  and  further,  that  a  clerk  of  the  ware- 
houseman who  received  such  property,  after  its  removal  and 


GEOKGIA.  118 

placed  the  same  in  his  employer's  warehouse,  was  not  liable  for 
the  conversion  thereof.     Stafford  v.  Mercer,  42  Ga.  556. 

Same— Charges  to  jury— Ordinary  care— Measure  of  damages. 

Where  cotton  was  thrown  out  of  defendant's  warehouse  by 
the  Confederate  forces,  in  order  that  such  warehouse  might  be 
used  as  a  hospital,  and  where  the  evidence  showed  that  both 
the  plaintiff,  who  was  the  owner  of  the  cotton,  and  defendant 
had  seen  the  cotton  so  thrown  out,  it  was  error  on  the  part  of 
the  court  to  rest  its  charges  to  the  jury  simply  on  the  fact  that 
it  was  the  duty  of  the  warehouseman  to  recover  possession 
thereof,  if  he  could  do  so  by  the  exercise  of  ordinary  care  and 
prudence;  the  court  should  have  further  charged  that  if  it  ap- 
peared to  the  satisfaction  of  the  jury  that  plaintiff  might  have 
protected  his  cotton  by  the  exercise  of  such  care,  it  was  his  duty 
to  do  so,  and  the  attention  of  the  jury  should  have  been  called 
to  the  fact  that,  owing  to  the  state  of  war  then  existing,  both 
parties  were  to  all  intents  and  purposes  under  duress.  Smith 
&  Oneal  v.  Frost,  51  Ga.  336. 

Loss  of  weight — Burden  of  proof. 

Where  it  is  shown  that  properties  stored  with  a  warehouse- 
man have  decreased  in  weight  since  the  same  were  received  by 
him,  the  plaintiff  must  not  only  show  this  fact  but  it  must 
further  show  that  such  loss  resulted  from  the  negligence  and 
want  of  proper  care  on  the  part  of  the  warehouseman.  Cun- 
ningham V.  Franklin,  Read  &  Co.,  48  Ga.  531. 

0. 

Measure  of  damages— Interest  allowed  from  date  of  demand. 

Where  a  warehouseman  was  sued  for  the  conversion  of  cot- 
ton deposited  with  him  and  it  was  alleged  that  he  failed  to  re- 
deliver the  same  upon  demand,  the  court  charged  the  jury 
among  other  things,  that  if  it  found  for  the  plaintiff,  its  verdict 
should  be  for  the  value  of  the  cotton  with  interest  from  the  time 
of  demand  and  that  the  principle  and  interest  together  would 
be  the  amount  of  damages.  Held,  that  this  was  proper  charge. 
Garrard  v.  Dawson,  49  Ga.  434. 
8 


114  GEORGIA    DECISIONS. 

P. 

Cost  of  reynoving  debris — Equitable  lien — Bailor's  right  of  re- 
moval. 

A  warehouseman  had  a  hirge  quantity  of  rice  stored  which 
was  insured  in  various  fire  insurance  companies  by  the  several 
owners  thereof.  The  warehouse  was  burned  and  a  large  quan- 
tity of  the  rice  ruined.  Representatives  of  the  insurance  com- 
panies, without  permission  from  the  warehouseman,  removed 
all  the  salable  rice  remaining  after  the  fire  and  disposed  of  the 
same  in  accordance  with  the  terms  of  the  policies.  A  large 
quantity  of  ruined  rice  remained  on  the  premises  and  the  ware- 
houseman was  obliged  to  remove  the  same  pursuant  to  an  order 
of  the  health  authorities  of  the  city.  In  an  action  by  the  ware- 
houseman against  the  agent  of  the  several  insurance  companies 
who  held  the  proceeds  of  the  sale,  the  former  contended  that 
he  had  an  equitable  lien  on  such  proceeds  for  the  expense  which 
he  had  been  put  to  in  removing  the  rice  from  his  premises. 
The  court  held  that  this  contention  could  not  be  sustained, 
that  a  warehouseman's  lien  extended  only  to  the  goods  of  his 
customer  for  storage  charges  that  had  accrued  upon  them,  and 
that  the  court  would  not  extend  an  equitable  lien  for  his  dis- 
bursements in  such  a  case.  The  court  further  held  that  a  de- 
positor had,  at  all  times,  the  right  to  go  upon  the  premises  of 
the  warehouseman  to  remove  his  property  therefrom,  and  that 
if  the  property  was  partially  injured  that  the  owner  would  have 
a  right  to  remove  the  uninjured  ])ortion.  but  that  he  could  not 
be  compelled  to  remove  that  which  was  ruined.  That  if  the 
warehouseman  was  put  to  expense  in  removing  such  useless 
property,  the  expense  must  be  borne  by  him  as  it  is  one  of  the 
incidents  of  the  business  of  warehousemen.  Savannah  Steam 
Rice  Mill  Co.  v.  Hull,  103  Ga.  831. 

Insurance — Contract  to  keep  insured  in  customer's  name. 

The  plaintiff  brought  an  action  against  the  defendant  ware- 
houseman, alleging  that  he  had  stored  a  large  quantity  of  cotton 
in  the  warehouse  of  the  latter,  and  that  under  a  contract  be- 
tween them  it  was  agreed  that  the  defendant  was  to  keep  the 
cotton  insured  in  the  name  of  the  plaintiff.  The  cotton  was  to 
be  designated  in  the  policy  of  insurance  by  certain  marks  made 


GEORGIA.  llo 

on  the  several  bales.  After  several  months  the  plaintiff  re- 
moved the  cotton  from  the  warehouse  of  the  defendant  and 
settled  his  account  with  him  on  the  basis  that  the  insurance  liad 
been  placed  in  the  manner  specified  in  the  contract.  It  sub- 
sequently came  to  the  knowledge  of  the  plaintiff  that  the  ware- 
houseman had  not  insured  the  cotton  in  the  manner  set  forth 
in  the  contract,  but  that  the  cotton  had  been  insured  under  the 
defendant's  general  policies  of  insurance  covering  all  the  cotton 
in  the  warehouse  of  the  defendant.  The  depositor  thereupon 
brought  this  action  to  recover  the  amount  of  insurance  with 
which  he  was  charged.  It  was  held  that  he  was  entitled  to  so 
recover,  the  jury  having  found  that  as  a  matter  of  fact  the  de- 
fendant had  failed  to  comply  with  his  contract  with  the  plain- 
tiff.    Henderson  Warehouse  Co.  v.  Brand,  105  Ga.  217. 

Same — Contract  to  insure — Statement  in  warehouse  receipt  as 
to  insurance  does  not  constitute  such  contract. 

The  defendant  warehouse  company  issued  to  the  plaintiff  a 
receipt  for  cotton  stored  in  which  it  was  stated,  "All  cotton 
stored  with  us  fully  insured."  The  defendants  were  charged, 
first,  with  the  loss  of  the  cotton  in  that  the  fire  which  destroyed 
the  same  was  the  result  of  their  negligence  and,  by  an  amend- 
ment to  the  declaration,  with  a  liability  under  the  contract 
by  which  they  agreed  to  keep  the  cotton  insured;  and  that  the 
statement  in  the  warehouse  receipt  was  evidence  of  such  con- 
tract. On  motion  of  the  defendant  at  the  trial,  that  part  of 
the  declaration  in  regard  to  the  contract  to  keep  the  cotton 
insured  was  stricken  out  and  the  jury  was  left  to  consider  the 
question  as  to  whether  or  not  the  defendant  had  been  guilty  of 
negligence  in  the  loss  of  the  cotton.  It  was  held  that  the  mere 
statement  that  "All  cotton  stored  with  us  fully  insured"  is 
not  sufficient  to  constitute  a  contract  to  insure,  and  that  al- 
though these  words  might  be  misleading  and  productive  of 
damage,  they  were  not  sufficient  to  constitute  such  a  contract. 
The  jury  found  that  the  defendant  had  exercised  due  care  and 
that  it  was  not  responsible  for  the  loss  of  the  cotton  resulting 
from  the  fire.  The  judgment  given  for  the  defendant  was, 
therefore,  affirmed  on  appeal.  Zorn  v.  Hannah  &  Co.,  106 
Ga.  61. 


116  GEOKGIA    DECISIOISS. 

Same — Evidence  of  custom. 

Evidence  that  it  was  the  custom  of  those  depositing  goods 
in  warehouses  to  insure  theni  was  properly  received.  Hamil- 
ton &  Co.  V.  Moore,  94  Ga.  707. 

Warehouse  receipts — Negotiability. 

The  transfer  and  dehvery  of  a  warehouse  receipt  is  equiva- 
lent to  the  delivery  of  the  property  itself.  Citizens  Banking 
Co.  V.  Peacock  &  Carr,  103  Ga.  171;  Gibson  v.  Stern,  8  How. 
(U.  S.)  383. 

Sa7ne — Case  where  bailor  protected  when  warehouse  receipt 
fraudulently  negotiated. 

Where  the  owner  of  goods  delivers  them  to  his  agent  to  de- 
posit the  same  in  a  warehouse  and  the  agent  accordingly  does 
so,  but  takes  a  receipt  therefor  in  his  own  name  and  negotiates 
the  same,  it  was  held  that  the  title  of  the  owner  to  the  goods 
was  not  impaired  by  the  fraudulent  negotiation  of  the  receipt. 
Richardson  &  Martin  v.  Smith,  33  Ga.  Supp.  95. 

Same — Delivery  by — Essentials  of  sale. 

The  plaintiff  contracted  with  a  manufacturer,  who  was  also 
conducting  a  warehouse,  that  the  latter  should  manufacture 
certain  articles  of  commerce  and,  when  completed,  that  the 
goods  should  be  stored  in  the  warehouse  belonging  to  the  manu- 
facturer. It  was  the  custom  between  them  that  when  the 
goods  were  stored  the  purchaser  would  honor  a  draft  drawn 
by  the  manufacturer,  to  which  draft  were  attached  warehouse 
receipts  showing  that  the  goods  had  been  deposited  and  stored 
in  the  warehouses  On  the  occasion  out  of  which  this  suit  grew, 
the  manufacturer  had  issued  the  usual  receipt  and  drawn  his 
draft  on  the  plaintiff,  but  the  goods  represented  thereby  were 
still  in  the  factory  and  had  not  been  delivered  to  the  warehouse. 
After  the  plaintiff  had  paid  the  draft  and  before  he  had  with- 
drawn the  goods,  a  receiver  was  appointed  for  the  manufacturer 
who  took  possession  of  the  goods  represented  by  this  receipt, 
which  goods  were  found  in  tlie  factory  and  not  in  the  warehouse. 
At  the  trial  the  court  adjudged  that  no  title  had  passed  by  the 


GEORGIA.  117 

transfer  of  this  recei))t  to  the  jjlaiiitift'  and  that,  therefore,  he 
was  not  (Mititlecl  to  recovcM-.  Tlie  case  was  reversed  on  appeal 
holding  that  the  essentials  of  a  valid  sale  had  been  complied 
with  and  the  title  had  been  passed  to  the  plaintiff'.  That  the 
issuing  and  transferring  of  a  warehouse  receipt  was  a  well  recog- 
nized and  common  mode  of  effecting  delivery,  and,  in  this  case, 
was  undoul:)tedly  intended  to  operate  as  such.  Having  re- 
ceived the  price  of  the  goods,  the  manufacturer  would  be  es- 
topped from  denying  the  fact  of  delivery  to  his  warehouse. 
Shepard  &  Co.  v.  King,  96  Ga.  81. 

Same — Indorsement  hy  one  since  deceased — Title — Evidence. 

A  person,  since  deceased,  had  indorsed  a  warehouse  receipt 
to  another,  the  purpose  of  such  indorsement  was  not  stated. 
In  an  action,  by  the  executor,  for  the  recovery  of  the  goods 
represented  by  the  receipt,  parol  evidence  will  be  received, 
which  will  explain  that  such  indorsement  was  not  for  the  pur- 
pose of  passing  the  title  to  the  goods  but  simply  to  enable  the 
assignee  to  act  as  the  agent  for  the  indorser  to  obtain  the  cotton 
represented  by  the  receipt.     Lowery  v.  Davidson,  44  Ga.  38. 

Same — Collateral  security — Without  indorsement — Intention  of 
parties — Burden  of  proof. 

Where  a  receipt,  issued  by  a  warehouseman,  was  transferred 
by  the  person  to  whom  the  same  was  issued  and  pledged  as 
collateral  security,  for  the  payment  of  a  loan,  but  not  indorsed 
to  the  pledgee,  it  was  held  that  the  property  passed  to  the 
pledgee  by  such  symbolical  delivery.  Under  the  code  in  force 
in  the  state  of  Georgia,  a  pledgee  of  such  a  receipt  is  such  a 
bona  fide  holder  of  the  property  as  will  be  protected  under  the 
same  circumstances  as  a  purchaser.  Further,  that  if  the  par- 
ties so  intend,  the  delivery  of  a  warehouse  receipt  without  in- 
dorsement, as  collateral  security,  transfers  both  title  and  pos- 
session to  the  property  represented  by  the  receipt.  Where  the 
warehouseman  claims  that  the  pledgee  has  received  the  proceeds 
of  the  warehouse  receipt,  the  burden  of  proof  is  on  him  to  show 
that  fact  in  the  trial  of  the  action  for  the  recovery  of  the  prop- 
erty. Citizens  Banking  Co.  v.  Peacock  &  Carr,  103  Ga. 
171. 


118  GEOHfJTA    DECISIONS. 

Same — Property  not  actually  in  store — Authority  of  superin- 
tendent to  issue — Bona  fide  holder. 

The  siii)criiitendent  of  the  defendant  warehouse  company  is- 
sued negotiable  warehouse  receipts,  of  a  special  form,  when  the 
property  represented  thereby  was  not  actually  in  store.  It  was 
held  that  in  the  absence  of  statutory  provisions,  warehouse  re- 
ceipts and  bills  of  lading  are  mere  symbols  of  the  property 
which  they  represent,  and  that  a  i)ledgee  for  value  or  other 
bona  fide  holder  occupies  no  better  position  than  the  original 
bailor.  Further,  that  if  warehouse  receipts  of  a  special  form 
and  character  "be  adopted  and  issued  in  due  course  of  busi- 
ness, for  the  express  purpose  of  being  pledged  as  security  to 
obtain  money,  and  if,  as  a  part  of  the  regular  system  of  using 
them,  the  warehouseman  acknowledged  in  writing  on  each  re- 
ceipt notice  of  assignment  by  the  pledgor  to  the  pledgee  before 
the  latter  advances  his  money  thereon,  the  pledgee,  after  ad- 
vancing his  money  in  good  faith,  is  entitled  to  stand  in  the 
terms  of  the  pledged  receipt  as  importing  a  genuine  business 
transaction  of  the  nature  described  in  the  instrument.  Thus, 
though  in  fact  no  goods  had  been  received  for  storage,  the  re- 
cital in  the  special  receipt  being  utterly  false,  nevertheless  the 
recital  will  have  the  same  effect  in  protecting  such  bona  fide 
pledgee  as  if  the  goods  had  been  received  and  stored."  And, 
therefore,  the  warehouseman  was  liable  for  their  value.  The 
court  holding  that  he  who  creates  a  symbol,  is  bound  by  it  only 
in  its  symbolical  character;  but  he  who  creates  a  symbol  and 
aids  in  raising  it  to  a  security,  is  bound  by  it  both  as  a  symbol 
and  security.  Planters  Rice  Mill  Co.  v.  Merchants  Nat.  Bank 
of  Savannah,  78  Ga.  574;  Planters  Rice  Mill  Co.  v.  Olmstead  & 
Co.,  78  Ga.  586. 

Same — Same — Pledged  by  warehouseman  as  factor  to  secure 
personal  loan — Bona  fide  purchaser  of  goods  protected. 

Where  one,  who  was  a  warehouseman  and  who  also  acted  in 
the  capacity  of  factor  and  cotton  broker,  issued  a  warehouse 
receipt  in  his  own  name  for  cotton  stored  with  him  as  factor, 
and  pledged  the  same  with  a  bank  as  security  for  a  personal 
loan  to  him  ;  it  was  held  that  no  title  passed  to  the  bank  as 


GKORGIA.  119 

against  an  innocent  purchaser  of  tlu;  cotton  itself.  National 
Exchange  Bank  v.  Graniteville  Mfg.  Co.,  79  Ga.  22;  Western  & 
A.R.R.  Co.  V.  Ohio  Valley  B.  &  T.  Co.,  107  Ga.  512. 

Same — Same — To  secure  note  at  usurious  rate — Title  of  such 
pledgee  good  as  against  icarehouseman. 

The  owner  of  certain  bales  of  cotton  delivered  them  to  the 
defendant  warehouseman  and  received  his  warehouse  receipt. 
Such  receipt  was  assigned  to  the  plaintiff,  in  order  to  secure 
the  payment  of  a  note  which  bore  interest  at  a  usurious  rate. 
In  an  action  of  trover  against  the  warehouseman,  these  facts 
were  shown  at  the  trial  and,  further,  that  there  had  been  a  de- 
mand made  by  the  plaintiff  and  a  refusal  to  deliver  by  the  de- 
fendant warehouseman.  On  motion  of  the  defendant  the  plain- 
tiff was  nonsuited.  It  was  held  on  appeal  that  the  defendant 
warehouseman,  who  was  a  stranger  to  the  usurious  transac- 
tion, could  not  set  up  usury  as  a  defense  in  the  action  for  the 
recovery  of  the  property.     Zellner  v.  Mobley,  84  Ga.  746. 

Same — Refusal  to  deliver  goods  unless  receipt  surrendered — Not 
conversion. 

In  an  action,  brought  by  the  assignee  of  a  warehouse  receipt, 
against  the  warehouseman  for  conversion  of  the  goods,  conver- 
sion cannot  be  shown  by  the  mere  fact  that  the  warehouseman 
refused  to  deliver  the  goods  when  demanded  of  him,  he  claiming 
that  the  warehouse  receipt  should  be  delivered  to  him  before 
he  surrenders  the  goods  or  that  he  be  given  a  bond  indemnify- 
ing him  against  misdelivery.     Patten  v.  Baggs,  43  Ga.  167. 

Same — Lost  receipt — Warehouseman  compelled  to  deliver  goods 
— Equity  jurisdiction. 

A  bill  in  equity  was  filed  against  warehousemen  to  compel 
them  to  deliver  certain  goods  stored  with  them  upon  filing  a 
bond  to  indemnify  the  warehousemen,  it  being  alleged  in  the 
bill  that  the  warehouse  receipt  had  been  lost  or  destroyed ;  upon 
demurrer  to  such  bill  it  was  held  that  court  had  jurisdiction  to 
compel  defendants  to  deliver  the  goods  and  that  the  demurrer 
was  properly  overruled,  the  more  especially  since  it  appeared 
that,  if  the  bill  had  been  dismissed  for  want  of  jurisdiction,  the 


120  GEORGIA   DECISIONS. 

complainant's  remedy,  at  the  common-law  court,  might  have 
been  barred  by  the  statutes  of  limitations.  Hardeman  & 
Sparks  v.  Batter  shy,  53  Ga.  36. 

Same — Evidence — Parol  testimony — Admission. 

While  it  is  true  that  usually  the  possession  of  property  is 
the  best  evidence  of  title,  it  is  also  true  that,  where  personal 
property  sold  is  represented  by  warehouse  receipts,  the 
receipt  itself  is  the  best  evidence  of  title.  Further,  that 
where  a  warehouseman  declined  to  surrender  property,  which 
he  had  stored,  to  one  who  represented  himself  as  the  owner 
thereof,  stating  to  such  third  person  that  he  did  not  doubt 
that  he  was  the  true  owner  but  that  he  must  have  his  receipt, 
such  action  cannot  be  construed  as  an  admission  that  the 
warehouseman  regarded  such  third  person  as  his  bailor.  It 
was  at  the  most  that  the  third  person  seemed  to  be  the  owner 
but  that  his  title  was  defective.     Patten  v.  Baggs,  43  Ga.  167. 

R. 

Bill  of  lading — Delivery  by  carrier  of  the  goods  represented  ivith- 
out  return  of  the  hill  of  lading. 

A  common  carrier,  which  had  issued  a  bill  of  lading  for  a  quan- 
tity of  flour  intrusted  to  it  for  shipment,  subsequently  deliv- 
ered the  flour  without  procuring  the  return  of  the  bill  of  lading. 
It  appeared  that  the  consignor  had  consigned  the  goods  subject 
to  his  own  order,  and  that  he  had  drawn  a  draft  on  a  thirtl  person 
and  had  delivered  the  bill  of  lading  as  security  for  the  payment 
of  this  draft.  Held,  that  the  carrier  was  liable  on  the  bill  of 
lading.  Boatmen's  Saving  Bank  v.  Western  &  Atlantic  R.  R. 
Co.,  81  Ga.  221;  Western  &  A.  R.  R.  Co.  v.  Ohio  Valley  B.  & 
T.  Co.,  107  Ga.  512;  Coker  &  Co.  v.  First  Nat.  Bank  of  Memphis, 
112  Ga.  71. 

Same — Same — Waiver. 

The  plaintiff  sold  a  carload  of  shingles  to  a  purchaser  and 
instructed  the  railroad  company  not  to  deliver  the  same  with- 
out production  of  the  bill  of  lading.  After  the  shipment  was 
made,  plaintiff's  learned  that  the  defendant  railroad  company 
had,  contrary  to  the  terms  of  its  agreement,   delivered  the 


GEORGIA.  ]  21 

shingles  to  the  purchaser  without  i-ecjuiring  tlie  surrender  of 
the  bill  of  lading.  The  plaintiff  theivupon  dr(>w  his  (h'aft  at 
thirty  days,  and  although  such  draft  was  not  paid,  it  was  held, 
in  an  action  against  the  carrier,  that  the  plaintiff  had  waived 
his  right  as  to  the  surrender  of  the  bill  of  lading  on  delivery  by 
the  drawing  of  the  draft,  this  being  equivalent  to  the  accept- 
ance of  a  thirty  days'  credit ;  further,  that  the  title  to  the  shingles 
had  passed  to  the  purchaser.  Southern  Ry.  Co.  v.  Kinchen,  & 
Co.,  103  Ga.  186. 

Same — Exemptions  in — Contrary  to  code — Effect  of  acceptance. 

The  defendant  carrier  had  issued  a  bill  of  lading  which  con- 
tained provisions  that  it  would  not  be  responsible  for  the  loss 
or  damage  to  goods  incurred  when  on  other  and  connecting 
lines  of  railroad,  and  that  in  no  case  would  it  be  liable  for  dam- 
age unless  a  written  demand  be  made  therefor  within  ten  days 
after  delivery  of  goods.  It  was  held  that  both  of  these  attempted 
exemptions  were  contrary  to  section  2068  of  the  code,  that  it 
was  an  attempt  to  limit  the  legal  liabilities  of  the  carrier  and 
that  this  could  not  be  done  without  effectual  proof  that  the 
shipper  had  assented  thereto;  that  the  mere  acceptance  of  a 
bill  of  lading  does  not  establish  the  shipper's  assent  to  stipu- 
lations of  this  kind.  Central  R.  R.  Co.  v.  Hasselkus  &  Stewart, 
91  Ga.  382. 

Same — Indorsement  thereon  by  agent  as  to  condition  of  the  goods 
when  received  not  admissible  in  evidence. 

A  bill  of  lading  with  indorsement  thereon  by  freight  agent  of 
the  defendant,  to  the  effect  that  certain  corn  was  received  in 
good  order  by  the  road  by  which  he  was  employed,  is  not  ad- 
missible in  evidence  unless  it  be  further  shov/n  that  it  was  the 
duty  of  this  agent  to  investigate  the  condition  in  which  freight 
was  received  and  report  that  fact  on  bills  of  lading.  Evans  & 
Ragland  v.  Atlanta  &  West  Point  R.  R.  Co.,  56  Ga.  498. 

Same — Indorsement. 

Where  a  bill  of  lading  for  flour  had  not  been  indorsed  to 
plaintiff,  he  cannot  maintain  an  action  thereon.  Haas  v.  Kansas 
City,  F.  S.  &  G.  R.  R.  Co.,  81  Ga.  792. 


122  GEOnOIA    DKCISIOXS. 

Sa  m  e — Sa  m  c — Effect . 

All  iiKlorseiiient  on  a  bill  of  lading  by  the  consignor,  to  a  third 
person,  in  effect  makes  such  third  person  the  consignee.  Chi- 
cago Packing  &  Provisio7i  Co.  v.  The  Railroad,  103  Ga,  140. 

Same — Not  a  "'negotiable  instruments^ 

Although  a  bill  of  lading  be  indorsed  and  transferred  it  is 
not  such  a  negotiable  instrument  as  will  give  the  assignee  any 
greater  rights  than  the  assignor  had.     Id. 

Same — Same — Stands  for  the  property  it  represents. 

Under  the  common  law,  bills  of  lading  are  not,  properly 
speaking,  negotiable  instruments.  The  mere  possession  of  a 
bill  of  huling,  in  an  apparently  regular  state  and  under  circum- 
stances apparently  honest,  does  not  always  enable  the  holder 
to  negotiate  them  with  full  protection  to  a  bona  fide  purchaser. 
If  they  are  stolen  or  procured  from  the  owner  by  fraud  or  trusted 
to  an  agent  for  mere  custody  and  safe-keeping,  they  occupy  much 
the  same,  if  not  exactly  the  same,  position  that  the  property 
itself  would  occupy  if  it  were  dealt  with  instead  of  the  bills 
which  represent  it.  Tison  &  Gordon  v.  Hoivard,  57  Ga.  410; 
Raleigh  &  Gaston  R.  R.  Co.  et  al.  v.  Loive,  101  Ga.  320. 

Bills  of  lading — Notice  necessary  to  defeat. 

Owing  to  the  importance  of  bills  of  lading  and  similar  in- 
struments in  commercial  transactions  of  the  day,  the  court 
held  that  the  rights  of  i)urchasers  thereof  would  be  protected 
and  would  not  be  defeated  unless  there  be  notice  or  clear  evi- 
dence of  such  notice;  further,  that  mei-e  presumption  would  not 
suffice.  Boahnen's  Savings  Bank  v.  Western  &  Atlantic  R.  R. 
Co.,  81  Ga.  221. 

Same — Parol  evidence  not  receivable  to  shoio  time  of  delivery — 
Reasonable  time. 

The  plaintiffs  proved  by  a  bill  of  lading  a  written  contract  on 
the  part  of  the  defendant  carrier  to  carry  and  deliver  certain 
goods.  It  did  not  appear  from  the  bill  of  lading  that  any 
definite  time  was  therein  stated  in  which  delivery  must  be 
made.     It  was  held  that  there  was  an  implied    condition  in 


GEORGIA.  123 

such  contract  that  the  goods  would  be  deHvered  within  a  rea- 
sonable time  and  that  parol  evidence  ^voll](l  not  be  received 
to  show  that  it  was  the  undcjrstanding  of  the  parties  that  the 
goods  were  to  be  delivered  within  a  certain  understood  time; 
further,  that  the  bill  of  lading  nnist  be  looked  at  as  the  final 
depository  and  sole  evidence  of  the  contract  of  the  carrier. 
Central  R.  R.  Co.  v.  Hasselkm  &  Stewart,  91  Ga.  382 ;  Richmond 
&  Danville  R.  R.  Co.  v.  Shomo,  90  Ga.  496,  distinguishing 
Purcell  v.  Southern  Ex.  Co.,  34  Ga.  315.  See  also  McElveen  & 
Hardage  v.  Southern  Ry.  Co.,  109  Ga.  249. 

T. 

Larceny  by  employee — Employee  not  in  possession  as  bailee — 
Not  larceny  after  a  trust. 

Where  the  employee  of  a  warehouseman  stole  cotton  from 
him,  it  was  held  (the  value  of  the  cotton  being  found  to  be  less 
than  fifty  dollars)  that  the  crime  committed  was  one  of  larceny  ; 
that  the  property  was  in  the  possession  of  the  warehouseman 
and  not  of  the  defendant,  and,  therefore,  that  no  trust  was 
reposed  in  the  defendant  from  which  such  a  fraudulent  conver- 
sion could  be  shown  as  would  subject  him  to  indictment  for 
larceny  after  a  trust.     Wall  v.  State  of  Georgia,  75  Ga.  474. 


124  IDAHO   LAWS. 


CHAPTER  XI. 
IDAHO. 

LAWS  PERTAINING  TO  WAREHOUSEMEN. 

Lien  for  services : 

Every  person  who,  while  lawfully  in  possession  of  an  article 
of  personal  property,  renders  any  service  to  the  owner  thereof, 
by  labor  or  skill,  employed  for  the  protection,  improvement, 
safe-keeping  or  carriage  thereof,  has  a  special  lien  thereon,  de- 
pendent on  possession  for  the  compensation,  if  any,  which  is 
due  him  from  the  owner  for  such  service  (personal  property), 
and  livery  or  boarding  or  feed  stable  proprietors,  and  persons 
pasturing  horses,  or  stock,  have  a  lien,  dependent  on  possession 
for  their  compensation  in  caring  for,  boarding,  feeding  or  pastur- 
ing such  horses  or  stock.     Rev.  Stat.  Idaho,  1887,  sec.  3445. 

Lien  of  factor : 

A  factor  has  a  general  lien,  dependent  on  possession,  for  all 
that  is  due  to  him  as  such,  upon  all  articles  of  commercial  value 
that  are  intrusted  to  him  by  the  same  principal.     Id.  sec,  3447. 

When  bailee  and  others  are  gnilty  of  embezzlement : 

Every  person  intrusted  with  any  property  as  bailee,  tenant, 
or  lodger,  or  with  any  power  of  attorney  for  the  sale  or  trans- 
fer thereof,  who  fraudulently  converts  the  same  or  the  proceeds 
thereof  to  his  own  use,  or  secretes  it  or  them  with  a  fraudulent 
intent  to  convert  to  his  own  use,  is  guilty  of  embezzlement. 
Id.  sec.  7069. 


IDAHO.  1 25 

DECISIONS  AFFECTING  WAREHOUSEMEN. 

'^In  good  order  ^^  construed. 

Where  the  plaintiff  has  signed  a  receipt  for  goods  received 
from  a  carrier,  or  othei'  bailee,  in  which  it  is  stated  that  the 
goods  are  received  in  good  order,  it  was  held  that,  although 
this  statement  would  not  estop  the  plaintiff  from  afterward 
proving  that  the  goods  were  in  a  damaged  condition,  it  never- 
theless raised  a  strong  presumption  in  the  defendant's  favor. 
It  is  a  fact  about  which  evidence  may  be  received  to  fully  ex- 
plain the  circumstances  under  which  the  statement  was  made 
and  signed.     Bloomingdale  v.  Du  Rell  &  Co.,  1  Ida.  33. 


126  1LL1>()1.S    LAWS. 


CHAPTER  XIL 
ILLINOIS. 

ARTICLE    XIII    OF    THE    CONSTITUTIOX    OF    ILLINOIS    AND    LAWS 
PERTAINING  TO  WAREHOUSEMEN. 

Art.  XIII.     Constitution  of  Illinois. 

Sec.  1.  All  elevators  or  storehouses,  where  grain  or  other 
property  is  stored  for  a  compensation,  whether  the  property- 
stored  be  kept  separate  or  not,  are  declared  to  be  public  ware- 
houses. 

Sec.  2.  The  owner,  lessee,  or  manager  of  each  and  every  pub- 
lic warehouse,  situated  in  any  town  or  city  of  not  less  than 
100,000  inhabitants,  shall  make  weekly  statements  under  oath, 
before  some  officer  to  be  designated  by  law,  and  keep  the  same 
posted  in  some  conspicuous  place  in  the  office  of  such  ware- 
house, and  shall  also  file  a  copy  for  public  examination  in  such 
place  as  shall  be  designated  by  law,  which  statement  shall  cor- 
rectly set  forth  the  amount  and  grade  of  each  and  every  kind 
of  grain  in  such  warehouse,  together  with  such  other  property 
as  may  be  stored  therein,  and  what  warehouse  receipts  have 
been  issued,  and  are  at  the  time  of  making  such  statement, 
outstanding  therefor;  and  shall,  on  the  copy  posted  in  the  ware- 
house, note  daily  such  changes  as  may  be  made  in  the  quantity 
and  grade  of  grain  in  such  warehouse;  and  the  different  grades 
of  grain  shipped  in  separate  lots  shall  not  be  mixed  with  in- 
ferior or  superior  grades  without  the  consent  of  the  owner  or 
consignee  thereof. 

Sec.  3.  The  owners  of  property  stored  in  any  warehouse,  or 
holder  of  a  receipt  for  the  same,  shall  always  be  at  liberty  to 
examine  such  property  stored,  and  all  the  books  and  records 
of  the  warehouse  in  regard  to  such  property. 

Sec.  4.  All  railroad  conii)anies  and  other  common  carriers  on 


ILLINOIS.  127 

railroads  shall  weigh  or  measure  grain  at  points  where  it  is 
shipped,  and  receipt  for  the  full  amount,  and  shall  be  responsi- 
ble for  the  delivery  of  such  amount  to  the  owner  or  consignee 
thereof,  at  the  place  of  destination. 

Sec.  5.  All  railroad  companies  receiving  and  transporting 
grain  in  bulk  or  otherwise,  shall  deliver  the  same  to  any  con- 
signee thereof,  or  any  elevator  or  public  warehouse  to  which  it 
may  be  consigned,  provided  such  consignee,  or  the  elevator, 
or  public  warehouse  can  be  reached  by  any  track  owned,  leased, 
or  used,  or  which  can  be  used  by  such  railroad  companies;  and 
all  railroad  companies  shall  permit  connections  to  be  made 
with  their  track,  so  that  any  such  consignee,  and  any  public 
warehouse,  coal  bank,  or  coal  yard,  may  be  reached  by  the  cars 
on  said  railroad. 

Sec.  6.  It  shall  be  the  duty  of  the  general  assembly  to  pass  all 
necessary  laws  to  prevent  the  issue  of  false  and  fraudulent 
warehouse  receipts,  and  to  give  full  effect  to  this  article  of  the 
constitution,  which  shall  be  liberally  construed  so  as  to  protect 
producers  and  shippers.  And  the  enumeration  of  the  remedies 
herein  named  shall  not  be  construed  to  deny  to  the  general  as- 
sembly the  power  to  prescribe  by  law  such  other  and  further 
remedies  as  may  be  found  expedient,  or  to  deprive  any  person 
of  existing  common-law  remedies. 

Sec.  7.  The  general  assembly  shall  pass  laws  for  the  inspec- 
tion of  grain,  for  the  protection  of  producers,  shippers,  and  re- 
ceivers of  grain  and  produce. 

An  Act  to  regulate  public  warehouses,  and  the  warehousing 
and  inspection  of  grain  and  to  give  effect  to  article  thirteen  of 
the  constitution  of  this  state.  Approved  April  25,  1871.  In 
force  July  1,  1871,  L.  1871,  1872,  p.  762. 

Above  act  construed — Held  to  be  constitutional : 

This  act  was  held  to  be  constitutional  on  the  ground  that  the 
legislature  had  the  right  in  the  exercise  of  the  police  power  to 
prescribe  maximum  rates  of  storage,  it  not  being  contended 
that  such  rates  would  be  in  effect  prohibitive  of  the  business ; 
the  court  further  held  that  the  act  did  not  violate  either  the 
state  or  federal  constitutions.  Mioin  v.  The  People,  69  111.  80, 
aff'd  94  U.  S.  113.     (See  Illinois  decisions,  page  182). 


128  ILLINOIS   LAWS. 

Same — No  authority  for  appointment  of  inspectors  for 
warehouses  of  Class  B : 

In  an  action  of  quo  warranto  instituted  against  the  Board 
of  Trade  of  East  St.  Louis,  the  plaintiff  charged  the  defendant 
with  proceeding  without  warrant  of  hiw  in  the  appointment  of 
grain  inspectors  of  warehouses  and  elevators,  known  as  class  B, 
and  in  that  it  charged  and  collected  from  the  plaintiff  and  other 
owners,  not  being  members  of  said  board,  inspection  fees. 
It  was  held  that  although  section  19  of  the  above  act  jorovided 
that  no  proprietor  of  a  warehouse  of  Class  B  shall  be  per- 
mitted to  receive  any  grain  or  mix  the  same  with  the  grain  of 
other  owners  in  the  storage  thereof,  until  the  same  shall  have 
been  inspected  and  graded  by  a  regularly  appointed  inspector, 
that  in  view  of  the  fact  that  the  above  law  did  not  provide  for 
the  appointment  of  such  inspectors  that  it  could  not  be  said  that 
it  conferred  such  power  upon  the  defendant  or  that  it  had  dele- 
gated this  power  at  all.  Further,  that  the  contention  that  the 
act  of  1871  was  intended  as  an  amendment  to  the  charter  of  the 
board  of  the  defendant  could  not  be  sustained,  as  no  such  inten- 
tion is  exhibited  therein  either  expressly  or  impliedly.  Further, 
that  as  no  appointment  was  provided  for  in  this  act  and  none 
was  made,  proprietors  of  warehouses  of  Class  B  could  conduct 
their  business  without  inspectors  as  they  had  done  prior  to  the 
passage  of  the  act.  And  that  this  seeming  defect  in  the  act 
did  not,  in  the  judgment  of  the  court,  invest  the  defendant 
with  the  important  power  of  appointing  inspectors  of  grain. 
East  St.  Louis  Board  of  Trade  v.  The  People,  105  111.  382. 

Classified : 

Be  it  enacted  by  the  People  of  the  State  of  Illinois,  represented 
in  the  General  Assembly,  That  public  warehouses,  as  defined 
in  article  13  of  the  constitution  of  this  state,  shall  be  divided 
into  three  classes,  to  be  designated  as  classes  A,  B,  and  C,  re- 
spectively.    Revised  Statutes  of  Illinois,  1899,  ch.  114,  sec.  134. 

Classes  defined : 

Public  warehouses  of  Class  A  shall  embrace  all  warehouses, 
elevators  and  granaries  in  which  grain  is  stored  in  bulk,  and 
in  which  the  grain  of  different  owners  is  mixed  together,  or  in 


ILLINOIS.  129 

which  grain  is  stored  in  such  a  manner  that  the  identity  of 
(Ufferent  lots  or  parcels  cannot  be  accurately  preserved,  such 
warehouses,  elevators  or  granaries  being  located  in  cities  having 
not  less  than  100,000  inhabitants.  Public  warehouses  of 
Class  B  shall  embrace  all  other  warehouses,  elevators  or  gran- 
aries in  which  grain  is  stored  in  bulk,  and  in  which  the  grain 
of  different  owners  is  mixed  together.  Public  warehouses  of 
Class  C  shall  embrace  all  other  warehouses  or  places  where 
property  of  any  kind  is  stored  for  a  consideration.  Id.  ch.  114, 
sec.  135. 

License: 

The  proprietor,  lessee  or  manager  of  any  pubhc  warehouse 
of  Class  A  shall  be  required,  before  transacting  any  business 
in  such  warehouse,  to  procure  from  the  circuit  court  of  the 
county  in  which  such  warehouse  is  situated,  a  license,  permit- 
ting such  proprietor,  lessee  or  manager  to  transact  business  as 
public  warehouseman  under  the  laws  of  this  state,  which  license 
shall  be  issued  by  the  clerk  of  said  court  upon  a  written  appli- 
cation, which  shall  set  forth  the  location  and  name  of  such 
warehouse,  and  the  individual  name  of  each  person  interested 
as  owner  or  principal  in  the  management  of  the  same;  or,  if 
the  warehouse  be  owned  or  managed  by  a  corporation,  the 
names  of  the  president,  secretary  and  treasurer  of  such  corpo- 
ration shall  be  stated;  and  the  said  license  shall  give  authority 
to  carry  on  and  conduct  the  business  of  a  public  warehouse  of 
Class  A  in  accordance  with  the  laws  of  this  state,  and  shall 
be  revocable  by  the  said  court  upon  a  summary  proceeding  be- 
fore the  court,  upon  complaint  of  any  person  in  writing, 
setting  forth  the  particular  violation  of  law,  and  upon  satis- 
factory proof,  to  be  taken  in  such  manner  as  may  be  directed 
by  the  court.     Id.  ch.  114,  sec.  136. 

Above  section  construed — jurisdiction  of  circuit  court  to 
grant  and  revoke  licenses  : 

Under  section  three  of  the  aljove  act,  it  was  held  that  the  cir- 
cuit court  has  exclusive  jurisdiction  to  grant  or  revoke  licenses 
to  warehousemen  of  Class  A.     It  appeared  that  prior  to  the 
passage  of  the  above  act,  that  the  legislature  passed  on  April  13, 
9 


130  ILLINOIS    LAWS. 

1871,  an  act  to  establish  a  railroad  and  warehouse  commission 
in  which  it  was  provided  that  if  it  should  appear  to  said  com- 
mission, after  a  regular  hearing,  that  a  public  warehouseman 
luul  been  guilty  of  violating  any  law  in  the  state  of  Illinois,  that 
such  connnission  might  revoke  his  license  and  that  he  should 
not  be  entitled  to  another  license  until  the  expiration  of  six 
months.  AMien  this  act  was  approved  there  was  not,  and 
never  had  been,  any  law  provicUng  for  the  issuance  of  licenses 
to  warehousemen.  Therefore  the  act  given  above  was  the 
first  law  in  the  state  by  which  the  issuance  of  licenses  to  ware- 
housemen was  authorized,  lender  the  terms  of  this  act,  the 
circuit  court  is  given  authority  to  issue  such  licenses  to  ware- 
housemen of  Class  A  and,  after  proper  hearing,  to  revoke  the 
same  and  that  its  jurisdiction  was  exclusive  in  this  regard. 
Cantrell  et  al.  v.  Seaverns,  168  111.  165,  aff'g  Same  v.  Same,  64 
111.  App.  273. 

Bond: 

The  person  receiving  a  license  as  herein  provided  shall  file 
with  the  clerk  of  the  court  granting  the  same,  a  bond  to  the 
people  of  the  state  of  Illinois,  with  good  and  sufficient  surety, 
to  be  approved  by  said  court,  in  the  penal  sum  of  $10,000,  con- 
ditioned for  the  faithful  performance  of  his  duty  as  a  pubHc 
warehouseman  of  Class  A,  and  his  full  and  unreserved  com- 
pliance with  all  laws  of  this  state  in  relation  thereto.  Id. 
ch.  114,  sec.  137. 

Penalty  for  doing  business  without  license  : 

Any  person  who  shall  transact  the  business  of  a  public  ware- 
house of  Class  A  without  first  procuring  a  license  as  herein 
provided,  or  who  shall  continue  to  transact  any  such  business 
after  such  license  has  been  revoked  (save  only  that  he  may  be 
permitted  to  deliver  property  i^reviously  stored  in  such  ware- 
house), shall,  on  conviction,  be  fined  in  a  sum  not  less  than 
SlOO  nor  more  than  $500  for  each  and  every  day  such  business 
is  carried  on;  and  the  court  may  refuse  to  renew  any  license, 
or  grant  a  new  one,  to  any  of  the  jjersons  whose  license  has  been 
revoked,  within  one  year  from  the  time  the  same  was  revoked. 
Id.  ch.  114,  sec.  138. 


ILLINOIS.  131 

Not  to  discriminate — Wiieii  grain  may  be  mixed — Receipts : 

It  shall  be  the  duty  of  ev(;ry  warehouseman  of  Class  A  to 
receive  for  storage  any  grain  that  may  be  tendered  him  in  the 
usual  manner  in  which  warehouses  are  accustomed  to  receive 
the  same  in  the  ordinary  and  usual  course  of  business,  not  mak- 
ing any  discrimination  between  persons,  or  between  himself  as 
the  owner  of  grain  stored  in  such  house,  and  other  persons,  de- 
siring to  avail  themselves  of  warehouse  facilities — such  grain, 
in  all  cases,  to  be  inspected  and  graded  by  a  duly  authorized 
inspector,  and  to  be  stored  with  grain  of  a  similar  grade,  re- 
ceived at  the  same  time,  as  near  as  may  be.  In  no  case  shall 
grain  of  different  grades  be  mixed  together  while  in  store;  but, 
if  the  owner  or  consignee  so  requests  and  the  warehouseman 
consents  thereto,  his  grain  of  the  same  grade  may  be  kept  in  a 
bin  by  itself,  apart  from  that  of  other  owners,  which  bin  shall 
thereupon  be  marked  and  known  as  a  "separate  bin."  If  a 
warehouse  receipt  be  issued  for  grain  so  kept  separate,  it  shall 
state  on  its  face  that  it  is  in  a  separate  bin,  and  shall  state  the 
number  of  such  bin;  and  no  grain  shall  be  delivered  from  such 
warehouse  unless  it  be  inspected  on  the  delivery  thereof  by  a 
duly  authorized  inspector  of  grain.  Nothing  in  this  section 
shall  be  so  construed  as  to  require  the  receipt  of  grain  into  any 
wareho  se  in  which  there  is  not  sufficient  room  to  accommo- 
date or  store  it  properly,  or  in  cases  where  such  warehouse  is 
necessarily  closed. 

The  proprietors,  lessees  or  managers  of  public  warehouses  of 
Class  A  may  store  in  any  such  warehouses,  owned,  leased  or 
managed  by  them,  grain  of  their  own,  and  mix  it  with  the  grain 
of  others  of  like  grade  stored  therein,  and  may  purchase  ware- 
house receipts  representing  grain  on  store  in  such  warehouses 
owned,  leased  or  managed  by  them;  but  when  any  such  pro- 
prietor, lessee  or  manager  shall  desire  to  so  store  and  mix  his 
own  grain  in  any  such  warehouse  or  warehouses  owned,  leased 
or  managed  by  him,  or  to  purchase  receipts  for  grain  on  store 
therein,  he  shall  so  inform  the  chief  inspector  of  grain  of  the 
county  in  which  such  w^arehouse  or  warehouses  are  located,  and 
said  chief  inspector  shall  thereupon  place  and  keep  in  such 
warehouse  or  warehouses,  whenever  necessary  so  to  do,  one  or 


132  ILLINOIS    LAWS. 

more  assistant  inspectors,  who  shall,  in  addition  to  their  usual 
duties  as  assistant  inspectors,  have  general  su])ervision  over  the 
storing  and  care  of  the  grain  stored  in  such  warehouse  or  ware- 
houses, under  such  rules  and  regulations  as  shall  be  made  by 
the  railroad  and  warehouse  commissioners;  and  said  commis- 
sioners are  hereby  invested  with  full  power  and  authority  to 
make  all  rules  and  regulations  concerning  the  storing,  handling 
and  delivery  of  grain  in  warehouses  of  Class  A,  in  w^hich  the 
{)roprietors,  lessees  or  managers  thereof  store  their  own  grain, 
as  may,  in  their  opinion,  be  necessary  to  prevent  any  fraud 
upon,  or  discrimination  against,  other  depositors  of  grain  in 
their  said  warehouse  or  warehouses  from  securing  to  himself, 
as  the  owner  of  grain  stored  therein,  any  benefit  or  advantage 
over  any  other  depositor  of  grain  stored  in  such  w^arehouse  or 
warehouses.     Id.  ch.  114,  sec.  139. 

Manner  of  issuing  receipts  : 

Upon  application  of  the  owner  or  consignee  of  grain  stored 
in  a  public  warehouse  of  Class  A,  the  same  being  accompanied 
with  evidence  that  all  transportation  or  other  charges  which 
may  be  a  lien  upon  such  grain,  including  charges  for  inspection, 
have  been  paid,  the  warehouseman  shall  issue  to  the  person  en- 
titled thereto,  a  warehouse  receipt  therefor,  subject  to  the  order 
of  the  owner  or  consignee,  which  receipt  shall  bear  date  cor- 
responding with  the  receipt  of  grain  into  store,  and  shall  state 
upon  its  face  the  quantity  and  inspected  grade  of  the  grain,  and 
that  the  grain  mentioned  in  it  has  been  received  into  store,  to 
be  stored  with  grain  of  the  same  grade  by  inspection,  received 
at  about  the  date  of  the  receipt,  and  that  it  is  deliverable  upon 
the  return  of  the  receipt,  properly  indorsed  by  the  person  to 
wliose  order  it  was  issued,  and  the  payment  of  proper  charges 
for  storage.  All  warehouse  receipts  for  grain,  issued  from  the 
same  warehouse,  shall  })e  consecutively  numbered;  and  no  two 
receipts,  bearing  the  same  number,  shall  be  issued  from  the  same 
warehouse  during  any  one  year,  except  in  the  case  of  a  lost  or 
destroyed  receipt,  in  which  case  the  new  receipt  shall  bear  the 
same  date  and  number  as  the  original,  and  shall  be  plainly 
marked  on  its  face  "duplicate."  If  the  grain  was  received 
from  railroad  cars,  the  number  of  each  car  shall  be  stated  upon 


ILTJNOTS.  133 

the  receipt  with  tlic  amount  it  contained;  if  from  canal  boat  or 
other  vessel,  tlie  name  of  such  craft  ;  if  from  teams  or  by  other 
means,  the  manner  of  its  receipt  shall  be  stated  on  its  face.  Id. 
ch.  114,  sec.  140. 

Cancelling  receipts : 

Upon  the  delivery  of  grain  from  store,  upon  any  receipt,  such 
receipt  shall  be  ])lainly  marked  across  its  face  with  the  word 
"cancelled,"  with  the  name  of  the  person  canceUing  the  same, 
and  shall  thereafter  be  void,  and  shall  not  again  be  put  in  cir- 
culation, nor  shall  grain  be  delivered  twice  upon  the  same  re- 
ceipt.    Id.  ch.  114,  sec.  141. 

Further  of  issuing  and  cancelling  receipts  : 

No  warehouse  receipt  shall  be  issued,  except  upon  the  actual 
delivery  of  grain  into  store,  in  the  warehouse  from  which  it 
purports  to  be  issued,  and  which  is  to  be  represented  by  the 
receipt;  nor  shall  any  receipt  be  issued  for  a  greater  quantity 
of  grain  than  was  contained  in  the  lot  or  parcel  stated  to  have 
been  received ;  nor  shall  more  than  one  receipt  be  issued  for  the 
same  lot  of  grain,  except  in  cases  where  receipts  for  a  part  of 
a  lot  are  desired,  and  then  the  aggregate  receipts  for  a  particular 
lot  shall  cover  that  lot  anfl  no  more.  In  cases  where  a  part  of 
the  grain  represented  by  the  receipt  is  delivered  out  of  store 
and  the  remainder  is  left,  a  new  receipt  may  be  issued  for  such 
remainder;  but  such  new  receipt  shall  bear  the  same  date  as 
the  original,  and  shall  state  on  its  face  that  it  is  balance  of  re- 
ceipt of  the  original  number ;  and  the  receipt  upon  which  a  part 
has  been  delivered  shall  be  cancelled  in  the  same  manner  as  if 
it  had  all  been  delivered.  In  case  it  be  desirable  to  divide 
one  receipt  into  two  or  more,  or  in  case  it  be  desirable  to 
consolidate  two  or  more  receipts  into  one,  and  the  ware- 
houseman consent  thereto,  the  original  receipt  shall  be  can- 
celled the  same  as  if  the  grain  had  been  delivered  from  store; 
and  the  new  receipts  shall  express  on  their  face  that  they  are 
parts  of  other  receipts,  or  a  consolidation  of  other  receipts,  as 
the  case  may  be ;  and  the  numbers  of  the  original  receipts  shall 
also  appear  upon  the  new  ones  issued,  as  explanatory  of  the 
change,  but  no  consolidation  of  receipts  of  dates  differing  more 


134  ILLINOIS    LAWS. 

than  ten  days  shall  be  permitted,  and  all  new  receipts  issued  for 
old  ones  cancelled,  as  herein  provided,  shall  bear  the  same  dates 
as  those  originally  issued,  as  near  as  may  be.  Id.  ch.  114, 
sec.  142. 

Not  to  limit  liability : 

No  warehouseman  in  this  state  shall  insert  in  any  receipt 
issued  l)y  him,  an}^  language  in  anywise  limiting  or  modifying 
his  liabilities  or  responsibility,  as  imposed  by  the  laws  of  this 
state.     Id.  ch.  114,  sec.  143. 

Delivery  of  property  : 

On  the  return  of  any  warehouse  receipt  issued  by  him,  prop- 
erly indorsed,  and  the  tender  of  all  proper  charges  upon  the 
property  represented  by  it,  such  property  shall  be  immediately 
deliverable  to  the  holder  of  such  receipt,  and  it  shall  not  be  sub- 
ject to  any  further  charges  for  storage,  after  demand  for  such 
delivery  shall  have  been  made.  Unless  the  property  repre- 
sented by  such  receipt  shall  be  delivered  within  two  hours  after 
such  demand  shall  have  been  made,  the  warehouseman  in  de- 
fault shall  be  liable  to  the  owner  of  such  receipt  for  damages 
for  such  default,  in  the  sum  of  one  cent  per  bushel,  and  in  addi- 
tion thereto,  one  cent  per  bushel  for  each  and  every  day  of 
such  neglect  or  refusal  to  deliver:  Provided,  no  warehouseman 
shall  be  held  to  be  in  default  in  delivering  if  the  property  is 
delivered  in  the  order  demanded,  and  as  rapidly  as  due  cUli- 
gence,  care  and  prudence  will  justify.     Id.  ch.  114,  sec.  144. 

Posting  grain  in  store— Statement  to  registrar— Daily 
publication — Cancelled  receipts : 

The  warehousemen  of  every  }mblic  warehouse  of  Class  A  shall, 
on  or  before  Tuesday  morning  of  each  week,  cause  to  be  made 
out,  and  sliall  keep  posted  up  in  the  business  office  of  his  ware- 
house, in  a  conspicuous  place,  a  statement  of  the  amount  of 
each  kind  and  grade  of  grain  in  store  in  his  warehouse  at  the 
close  of  business  on  the  previous  Saturday,  and  shall,  also,  on 
each  Tuesday  morning,  render  a  similar  statement,  made  under 
oath  before  some  officer  authorized  by  law  to  administer  oaths, 
by  one  of  the  principal  owners  or  operators  thereof,  or  by  the 


ILLINOIS.  135 

bookkeeper  thereof,  having  personal  knowledge  of  the  facts,  to 
the   warehouse   registrar   appointed   as    hereinafter    provided. 
They  shall  also  be  required  to  furnish  daily,  to  the  same  registrar, 
a  correct  statement  of  the  amount  of  each  kind  and  grade  of 
grain  received  in  store  in  such  warehouse  on  the  previous  day; 
also  the  amount  of  each  kind  and  grade  of  grain  delivered  or 
shipped  by  such  warehouseman  during  the  previous  day,  and 
what  warehouse  receipts  have  been  cancelled,  upon  which  the 
grain  has  been  delivered  on  such  day,  giving  the  number  of 
each  receipt,  and  amount,  kind  and  grade  of  grain  received  and 
shipped  upon  each;  also,  how  much  grain,  if  any,  was  so  deliv- 
ered or  shipped,  and  the  kind  and  grade  of  it,  for  which  ware- 
house receipts  had  not  been  issued,  and  when  and  how  such 
unreceipted  grain  was  received  by  them ;  the  aggregate  of  such 
reported  cancellations  and  delivery  of  unreceipted  grain,  cor- 
responding in  amount,  kind  and  grade  with  the  amount  so  re- 
ported, delivered  or  shipped.     They  shall  also,  at  the  same  time, 
report  what  receipts,  if  any,  have  been  cancelled  and  new  ones 
issued  in  their  stead,  as  herein  provided  for.     And  the  ware- 
houseman making  such  statements,  shall,  in  addition,  furnish 
the  said  registrar  any  further  information,  regarding  receipt 
issued  or  cancelled,  that  may  be  necessary  to  enable  him  to  keep 
a  full  and  correct  record  of  all  receipts  issued  and  cancelled,  and 
of  grain  received  and  delivered.     Id.  ch.  114,  sec.  145. 

Appoiiitnieiit  of  chief  inspector : 

It  shall  be  the  duty  of  the  governor  to  appoint  by  and  with 
the  advice  and  consent  of  the  senate  a  suitable  person  who 
shall  not  be  a  member  of  the  board  of  trade,  and  who  shall  not 
be  interested  either  directly  or  indirectly  in  any  warehouse  in 
the  state,  a  chief  inspector  of  grain,  who  shall  hold  his  office 
for  a  term  of  two  years,  unless  sooner  removed,  as  hereinafter 
provided  for,  in  every  city  or  county  in  which  is  located  a  ware- 
house of  Class  A  or  Class  B:  Provided,  T\i2i%  no  such  grain  in- 
spector for  cities  or  counties  in  which  are  located  warehouses 
of  Class  B  shall  be  appointed,  except  upon  the  recommenda- 
tion of  the  Board  of  Railroad  and  Warehouse  Commissioners; 
and  such  recommendation  shall  be  made  only  upon  a  request 
for  suoh  action  by  the  county  commissioners  or  board  of  super- 


136  ILLINOIS    LAWS. 

visors  of  the  county  in  wliich  such  warehouses  are  located,  and 
cities  or  counties  wherein  an  inspector  may  be  appointed,  no 
person  other  than  such  duly  appointed  inspector,  or  those  au- 
thorized as  assistant  inspectors,  shall  inspect  or  grade  any  grain 
without  being  liable  to  the  penalties  provided  in  section  20  of 
said  act.     Id.  ch.  114,  sec.  146,  p.  1. 

Duty  of  chief  iuspector : 

It  shall  be  the  duty  of  such  chief  inspector  of  grain  to  have 
a  general  supervision  of  the  inspection  of  grain,  as  required 
by  this  act  or  laws  of  this  state,  under  the  advice  and  immediate 
direction  of  the  Board  of  Commissioners  of  Railroads  and  Ware- 
houses.    Id.  ch.  114,  sec.  146,  p.  2. 

Assistant  iuspector : 

The  said  chief  inspector  shall  be  authorized  to  nominate  to 
the  Commissioners  of  Railroads  and  Warehouses  such  suitable 
persons  in  sufficient  number  as  may  be  deemed  qualified  for 
assistant  inspectors,  who  shall  not  be  members  of  the  board  of 
trade  nor  interested  in  any  warehouse,  and  also  such  other  em- 
ployees as  may  be  necessary  to  properly  conduct  the  business 
of  his  office ;  and  the  said  commissioners  are  authorized  to  make 
such  appointments.     Id.  ch.  114,  sec.  146,  p.  3. 

Wheu  iuspector  to  take  oath  and  give  bond  : 

The  chief  inspector  shall,  upon  entering  upon  the  duties  of 
his  office,  be  required  to  take  an  oath  as  in  cases  of  other  officers, 
and  he  shall  execute  a  bond  to  the  people  of  the  state  of  Illinois, 
in  the  penal  sum  of  fifty  thousand  dollars,  when  appointed  for 
any  city  in  which  is  located  a  warehouse  of  Class  A,  and  ten 
thousand  dollars  when  appointed  for  any  other  city  or  county, 
with  sureties  to  be  approved  by  the  Board  of  Commissioners 
of  Railroads  and  Warehouses,  with  condition  therein  that  he 
will  faithfulh^  and  strictly  discharge  the  duties  of  his  said  office 
of  inspector  according  to  law,  and  the  rules  and  regulations 
prescribing  his  duties;  and  that  he  will  pay  all  damages  to  any 
person  or  persons  who  may  be  injured  by  reason  of  his  neglect, 
refusal  or  failure  to  comply  with  the  law  and  the  rules  and  regu- 
lations aforesaid.     Id.  ch.  114,  sec.  146,  p.  4. 


ILLINOIS.  137 

Assistant  inspector — Oatli — Bond  : 

And  each  assistant  inspector-  shall  take  a  like  oath,  execute 
a  bond  in  the  penal  sum  of  five  thousand  dollars,  with  like  con- 
ditions, and  to  be  approved  in  like  manner  as  is  provided  in  the 
case  of  the  chief  inspector,  which  said  several  bonds  shall  be 
filed  in  the  office  of  said  commissioners ;  and  suit  may  be  brought 
upon  said  bond  or  bonds  in  any  court  having  jurisdiction  thereof, 
in  the  county  where  the  plaintiff  or  defendant  resides,  for  the 
use  of  the  person  or  persons  injured.     Id.  ch.  114,  sec.  146,  p.  5. 

Rules  for  government  of  inspectors : 

The  chief  inspectors  of  grain,  and  all  assistant  inspectors  of 
grain  and  other  employees  in  connection  therewith,  shall  be 
governed  in  their  respective  duties  by  such  rules  and  regula- 
tions as  may  be  prescribed  by  the  Board  of  Commissioners  of 
Railroads  and  Warehouses ;  and  the  said  board  of  commissioners 
shall  have  full  power  to  make  all  proper  rules  and  regulations 
for  the  inspection  of  grain,  and  shall  also  have  power  to  fix 
the  rate  of  charges  for  the  inspection  of  grain  and  the  manner 
in  which  the  same  shall  be  collected,  which  charges  shall  be 
regulated  in  such  manner  as  will,  in  the  judgment  of  the  com- 
missioners, produce  sufficient  revenue  to  meet  the  necessary 
expenses  of  the  service  of  inspection  and  no  more.  Id.  ch.  114, 
sec.  146,  p.  6. 

Compensation : 

It  shall  be  the  duty  of  the  said  board  of  commissioners  to  fix 
the  amount  of  compensation  to  be  paid  to  the  chief  inspector, 
assistant  inspectors,  and  all  other  persons  employed  in  the  inspec- 
tion service,  and  prescribe  the  time  and  manner  of  their  pay- 
ment.    Id.  ch.  114,  sec.  146,  p.  7. 

Appointment  of  warehouse  registrar : 

The  said  Board  of  Commissioners  of  Railroads  and  Ware- 
houses are  hereby  authorized  to  appoint  a  suitable  person  as 
warehouse  registrar  and  such  assistants  as  may  be  deemed 
necessary  to  perform  the  duties  imposed  upon  such  registrar 
by  the  provisions  of  this  act.     Id.  ch.  114,  sec.  146,  p.  8. 


138  ILLINOIS    LAWS. 

Board  of  commissioners  to  exercise  a  geiier.al  supervision : 

The  said  board  of  commissioners  shall  have  and  exercise  a 
general  supervision  and  control  of  such  appointees,  shall  pre- 
scribe their  respective  duties,  shall  fix  the  amount  of  their 
compensation  and  time  and  manner  of  its  payment.  Id.  ch.  114, 
sec.  146,  p.  9. 

Penalty  for  violating  act : 

Upon  the  complaint  in  writing  of  any  person  to  the  said 
board  of  commissioners,  supported  by  reasonable  and  satis- 
factory proof,  that  any  person  appointed  or  employed  under 
the  provisions  of  this  section  has  violated  any  of  the  rules  pre- 
scribed for  his  government,  has  been  guilty  of  any  improper 
official  act,  or  has  been  found  insufficient  or  incompetent  for 
the  duties  of  his  position,  such  person  shall  be  immediately 
removed  from  his  office  or  employment  by  the  same  authority 
that  appointed  him,  and  his  place  shall  be  filled,  if  necessary, 
by  a  new  appointment ;  or,  in  case  it  shall  be  deemed  necessary 
to  reduce  the  number  of  persons  so  appointed  or  employed, 
their  term  of  service  shall  cease  under  the  orders  of  the  same 
authority  by  which  they  were  appointed  or  employed.  Id.  ch. 
114,  sec.  146,  p.  10. 

Necessary  expenses  of  inspector  of  grain : 

All  necessary  expenses  incident  to  the  inspection  of  grain, 
and  the  office  of  registrar,  economically  administered,  includ- 
ing the  rent  of  suitable  offices,  shall  be  deemed  the  expenses  of 
inspection  service  and  shall  be  included  in  the  estimate  of  ex- 
penses of  such  inspection  service  anct  shall  be  paid  from  the 
funds  collected  for  the  same.  (1)  An  Act  to  amend  section  14 
of  an  act  entitled  "An  act  to  regulate  public  warehouses,  and 
the  wareliousing  and  inspection  of  grain,  and  to  give  effect  to 
Article  XIII  of  the  Constitution  of  this  State,"  approved 
April  25,  1871,  in  force  July  1,  1871,  and  to  provide  for  revenue 
and  the  payment  of  the  expenses  of  the  same.  Id.  ch.  114, 
sec.  146,  p.  11. 

Rates  of  storage : 

Every  warehouseman  of  public  warehouses  of  Class  A  shall 


ILLINOIS.  139 

be  required,  during  the  first  week  in  January  of  each  year,  to 
publish  in  one  or  more  of  the  newspapers  (daily,  if  there  be  such) 
pubhshed  in  the  city  in  which  such  warehouse  is  situated,  a 
table  of  the  schedule  or  rate  for  the  storage  of  grain  in  his  ware- 
house during  the  ensuing  year,  which  rates  shall  not  be  in- 
creased (except  as  provided  in  section  16  of  this  act)  during 
the  year;  and  such  published  rates,  or  any  published  reduction 
of  them,  shall  apply  to  all  grain  received  into  such  warehouse 
from  any  person  or  source,  and  no  discrimination  shall  be  made 
directly  or  indirectly,  or  for  or  against  any  charges  made  by 
such  warehouseman  for  the  storage  of  grain.  The  maximum 
charge  for  storage  and  handling  of  grain,  including  the  cost  of 
receiving  and  dehvering,  shall  be,  for  the  first  ten  days  or  part 
thereof,  one  and  one-quarter  (1})  cents  per  bushel,  and  for  each 
ten  days,  or  part  thereof  after  the  first  ten  days  one-half  of  one 
cent  per  bushel:  Provided,  however,  that  grain  damp,  or  liable 
to  early  damage,  as  incUcated  by  its  inspection  when  received, 
may  be  subject  to  two  cents  per  bushel  storage,  for  the  first 
ten  days,  and  for  each  additional  five  days,  or  part  thereof  not 
exceeding  one-half  of  one  cent  per  bushel :  Provided,  further,  that 
where  grain  has  been  received  in  any  such  warehouse  prior  to 
the  first  day  of  March,  1877,  under  the  express  or  implied  con- 
tract to  pay  and  receive  rates  of  storage  tlifferent  from  those 
prescribed  by  law,  or  where  it  has  been  received  under  any  cus- 
tom or  usage  prior  to  said  day  to  pay  or  receive  rates  of  storage 
different  from  the  rates  fixed  by  law,  it  shall  be  lawful  for  any 
owner  or  manager  of  such  warehouse  to  receive  and  collect  such 
agreed  or  customary  rates.     Id.  ch.  114,  sec.  147. 

Loss  by  fire — Heating — Order  of  delivery — Grain  out  of 
condition ; 

No  public  warehouseman  shall  be  held  responsible  for  any 
loss  or  damage  to  property  by  fire,  while  in  his  custody,  pro- 
vided reasonable  care  and  vigilance  be  exercised  to  protect  and 
preserve  the  same;  nor  shall  he  be  held  liable  for  damages  to 
grain  by  heating,  if  it  can  be  shown  that  he  has  exercised  proper 
care  in  handling  and  storing  the  same,  and  that  such  heating 
or  damage  was  the  result  of  causes  beyond  his  control;  and,  in 
order  that  no  injustice  may  result  to  the  holder  of  the  grain  in 


140  ILLINOIS   LAWS. 

any  public  warehouse  of  Classes  A  or  B,  it  shall  be  deemed  the 
duty  of  such  warehouseman  to  dispose  of,  by  delivery  or  sliip- 
ping,  in  the  ordinary  or  legal  manner  of  so  delivering,  that 
grain  of  any  particular  grade  which  was  first  received  by  them, 
or  which  has  been  for  the  longest  time  in  store  in  his  warehouse ; 
and,  unless  public  notice  has  been  given  that  some  portion  of 
the  grain  in  his  warehouse  is  out  of  condition,  or  becoming  so, 
such  warehouseman  shall  deliver  grain  of  quality  equal  to  that 
received  by  him,  on  all  receipts  as  presented.     In  case,  how- 
ever, any  warehouseman  of  Classes  A  or  B  shall  discover  that 
any  portion  of  the  grain  in  his  warehouse  is  out  of  condition, 
or  becoming  so,  and  it  is  not  in  his  power  to  preserve  the  same, 
he  shall  inmiediately  give  public  notice,  by  advertisement  in  a 
daily  newspaper  in  the  city  in  which  such  warehouse  is  situated, 
and  by  posting  a  notice  in  the  most  public  place  (for  such  pur- 
pose) in  such  city,  of  its  actual  condition,  as  near  as  he  can  as- 
certain it ;  shall  state  in  such  notice  the  kind  and  grade  of  grain, 
and  the  bins  in  which  it  is  stored;  and  shall  also  state  in  such 
notice  the  receipts  outstanding  upon  which  such  grain  will  be 
delivered,  giving  the  numbers,  amounts  and  dates  of  each — 
which  receipts  shall  be  those  of  the  oldest  dates  then  in  circu- 
lation or  uncancelled,  the  grain  represented  by  which  has  not 
prei-iously  been   declared  or   receipted   for  as   out  of   condi- 
tion, or  if  the  grain  longest  in  store  has  not  been  receipted 
for,  he  shall  so  state,  and  shall  give  the  name  of  the  party  for 
whom  the  grain  was  stored,  the  date  it  was  received,  the  amount 
of  it;  and  the  enumeration  of  receipts  and  identification  of  grain 
so  discredited  shall  embi-ace,  as  near  as  may  be,  as  great  a  quan- 
tity of  grain  as  is  contained  in  such  bins;  and  such  grain  shall 
be  delivered  upon  the  return  and  cancellation  of  the  receipt, 
and  the  unreceipted  grain  upon  the  request  of  the  owner  or 
person  in  charge  thereof.    Nothing  herein  contained  shall  be  held 
to  relieve  the  said  warehouseman  from  exercising  ]iroper  care  and 
vigilance  in  preserving  such  grain  after  such  publication  of  its 
condition ;  but  such  grain  shall  be  kept  separate  and  apart  from 
all  direct  contact  with  other  grain,  and  shall  not  be  mixed  with 
other  grain  while  in  store  in  such  warehouse.     Any  warehouse- 
man guilty  of  any  act  of  neglect,  the  effect  of  which  is  to  de- 


ILLINOIS.  141 

predate  property  stored  in  the  warehouse  under  his  control, 
shall  be  held  responsible  as  at  common  law,  or  upon  the  bond 
of  such  warehouseman,  and  in  addition  thereto,  the  license  of 
such  warehouseman,  if  his  warehouse  be  of  class  A,  shall  be 
revoked.  Nothing  in  this  section  shall  be  so  construed  as  to 
permit  any  warehouseman  to  deliver  any  grain  stored  in  a 
special  bin,  or  by  itself,  as  provided  by  this  act,  to  any  but  the 
owner  of  the  lot,  whether  the  same  be  represented  by  a  ware- 
house receipt  or  otherwise.  In  case  the  grain  declared  out  of 
condition,  as  herein  provided  for,  shall  (not)  be  removed  from 
store  by  the  owner  thereof  within  two  months  from  the  date 
of  the  notice  of  its  being  out  of  condition,  it  shall  be  lawful  for 
the  warehouseman  where  the  grain  is  stored  to  sell  the  same  at 
public  auction,  for  account  of  said  owner,  by  giving  ten  days' 
public  notice,  by  advertisement  in  a  newspaper  (daily,  if  there 
be  such)  published  in  the  city  or  town  where  such  warehouse  is 
located.     Id.  ch.  114,  sec.  148. 


Tampering  with  grain  stored — Private  bins — Drying,  clean- 
ing, moving  : 

It  shall  not  be  lawful  for  any  public  warehouseman  to  mix 
any  grain  of  different  grades  together,  or  to  select  different 
qualities  of  the  same  grade  for  the  purpose  of  storing  or  deliver- 
ing the  same,  nor  shall  he  attempt  to  deliver  grain  of  one  grade 
for  another,  or  in  any  way  tamper  with  grain  while  in  his  pos- 
session or  custotly,  with  a  view  of  securing  any  profit  to  himself 
or  any  other  person;  and  in  no  case,  even  of  grain  stored  in  a 
separate  bin,  shall  he  be  permitted  to  mix  grain  of  different 
grades  together  while  in  store.  He  may,  however,  on  request 
of  the  owner  of  any  grain  stored  in  a  private  bin,  be  permitted  to 
dry,  clean,  or  otherwise  improve  the  condition  or  value  of  any  such 
lot  of  grain;  but  in  such  case  it  shall  only  be  delivered  as  such 
separate  lot,  or  as  the  grade  it  was  originally  when  received  by 
him,  without  reference  to  the  grade  it  may  be  as  improved  by 
such  process  of  drying  or  cleaning.  Nothing  in  this  section, 
however,  shall  prevent  any  warehouseman  from  moving  grain 
while  within  his  warehouse  for  its  preservation  or  safe-keeping. 
Id.  ch.  114,  sec.  149. 


142  ILLINOIS    LAWS. 

Examination  of  grain  and  scales — Incorrect  scales : 

All  persons  owning  property,  or  who  may  be  interested  in 
the  same,  in  any  public  warehouse,  and  all  duly  authorized 
inspectors  of  such  property,  shall  at  all  times,  during  ordinary 
business  hours,  be  at  full  liberty  to  examine  any  and  all  prop- 
erty stored  in  any  public  warehouse  in  this  state,  and  all  proper 
facilities  shall  be  extended  to  such  person  by  the  warehouseman, 
his  agents  and  servants,  for  an  examination;  and  all  parts  of 
public  warehouses  shall  be  free  for  the  inspection  and  examina- 
tion of  any  person  interested  in  property  stored  therein,  or  of 
any  authorized  inspector  of  such  property.  And  all  scales  used 
for  the  weighing  of  property  in  public  warehouses  shall  be  sub- 
ject to  examination  and  test  by  any  duly  authorized  inspector 
or  sealer  of  weights  and  measures,  at  any  time  when  required 
by  any  person  or  persons,  agent  or  agents,  whose  property  has 
been  or  is  to  be  weighed  on  such  scales — the  expense  of  such 
test  by  an  inspector  or  sealer  to  be  paid  by  the  warehouse  pro- 
prietor if  the  scales  are  found  incorrect,  but  not  otherwise. 
Any  warehouseman  who  may  Ije  guilty  of  continuing  to  use 
scales  found  to  be  in  an  imperfect  or  incorrect  condition  by 
such  examination  and  test,  until  the  same  shall  have  been 
pronounced  correct  and  properly  sealed,  shall  be  liable  to  be 
proceeded  against  as  hereinafter  provided.     Id  ch.  114,  sec.  150. 

Grain  must  be  inspected  : 

In  all  places  where  there  are  legally  appointed  inspectors  of 
grain,  no  proprietor  or  manager  of  a  public  warehouse  of  Class  B 
shall  bo  permitted  to  receive  an}^  grain  and  mix  the  same  with 
the  grain  of  other  owners,  in  the  storage  thereof,  until  the  same 
shall  have  been  inspected  and  graded  by  such  inspector.  Id. 
ch.  114,  sec.  151. 

Above  section  construed : 

This  act  does  not  provide  for  the  appointment  of  inspectors 
of  Class  B,  hence  above  section  inoperative  until  such  inspectors 
are  legally  appointed.     Board  of  Trade  v.  The  People,  105  111.  382. 

Assuming  to  act  as  inspector : 

Any  person  who  shall  assume  to  act  as  an  inspector  of  grain, 


ILLINOIS.  143 

who  has  not  first  been  so  appointed  and  sworn,  shall  be  held 
to  be  an  impostor,  and  shall  be  punished  by  a  fine  of  not  less 
than  $50  nor  more  than  $100  for  each  and  every  attempt  to  so 
inspect  grain,  to  be  recovered  before  a  justice  of  the  peace. 

Miscoiifluct  of  inspector — Influencing  : 

Any  duly  authorized  inspector  of  grain  who  shall  be  guilty  of 
neglect  of  duty,  or  who  shall  knowingly  or  carelessly  inspect  or 
grade  any  grain  improperly,  or  who  shall  accept  any  money  or 
other  consideration,  directly  or  indirectly,  for  any  neglect  of 
duty,  or  the  improper  performance  of  any  duty  as  such  inspector 
of  grain;  and  any  person  who  shall  improperly  influence  any 
inspector  of  grain  in  the  performance  of  his  duties  as  such  in- 
spector, shall  be  deemed  guilty  of  a  misdemeanor,  and,  on  con- 
viction, shall  be  fined  in  a  sum  not  less  than  $100  nor  more  than 
$1,000,  in  the  discretion  of  the  court,  or  shall  be  imprisoned  in 
the  county  jail  not  less  than  three  nor  more  than  twelve  months, 
or  both,  in  the  discretion  of  the  court.     Id.  ch.  114,  sec.  152. 

Owner,  etc.,  dissatisfied  with  inspection — His  rights : 

In  case  any  owner  or  consignee  of  grain  shall  be  dissatisfied 
with  the  inspection  of  any  lot  of  grain,  or  shall,  from  any  cause, 
desire  to  receive  his  property  without  its  passing  into  store,  he 
shall  be  at  liberty  to  have  the  same  withheld  from  going  into 
any  public  warehouse  (whether  the  property  may  have  pre- 
viously been  consigned  to  such  warehouse  or  not),  by  giving 
notice  to  the  person  or  corporation  in  whose  possession  it  may 
be  at  the  time  of  giving  such  notice;  and  such  grain  shall  be 
withheld  from  going  into  store,  and  be  delivered  to  him,  sub- 
ject only  to  such  proper  charges  as  may  be  a  lien  upon  it  prior 
to  such  notice.  The  grain,  if  in  railroad  cars,  to  be  removed 
therefrom  by  such  owner  or  consignee  within  twenty-four  hours 
after  such  notice  has  been  given  to  the  railroad  company  having 
it  in  possession  :  Provided,  such  railroad  company  place  the  same 
in  a  proper  and  convenient  place  for  unloading;  and  any  person 
or  corporation  refusing  to  allow  such  owner  or  consignee  to  so 
receive  his  grain  shall  be  deemed  guilty  of  conversion,  and  shall 
be  liable  to  pay  such  owner  or  consignee  double  the  value  of  the 
property  so  converted.     Notice  that  such  grain  is  not  to  be 


144  ILLINOIS    LAWS. 

delivered  into  store  may  also  be  given  to  the  proprietor  or  man- 
ager of  any  warehouse  into  which  it  would  otherwise  have  been 
delivered,  and  if,  after  such  notice,  it  be  taken  into  store  in 
such  warehouse,  the  proprietor  or  manager  of  such  warehouse 
shall  be  liable  to  the  owner  of  such  grain  for  double  its  market 
value.     Id.  ch.  114,  sec.  153. 

Combiuatiou  : 

It  shall  be  unlawful  for  any  proprietor,  lessee  or  manager  of 
any  public  warehouse,  to  enter  into  any  contract,  agreement, 
understanding,  or  combination,  with  any  railroad  company  or 
other  corporation,  or  with  any  individual  or  individuals,  by  which 
the  property  of  any  person  is  to  be  delivered  to  any  public  ware- 
house for  storage  or  for  any  other  purpose,  contrary  to  the  di- 
rection of  the  owner,  his  agent,  or  consignee.  Any  violation  of 
this  section  shall  subject  the  offender  to  be  proceeded  against 
as  provided  in  section  23  of  this  act.     Id.  ch.  114,  sec.  154. 

Suits  : 

If  any  warehouseman  of  Class  A  shall  be  guilty  of  a  violation 
of  any  of  the  provisions  of  this  act,  it  shall  be  lawful  for  any 
person  injured  by  such  violation  to  bring  suit  in  any  court  of 
competent  jurisdiction,  upon  the  bond  of  such  warehouseman, 
in  the  name  of  the  people  of  the  state  of  Illinois,  to  the  use  of 
such  person.  In  all  criminal  prosecutions  against  a  warehouse- 
man, for  the  violation  of  any  of  the  provisions  of  this  act,  it 
shall  be  the  duty  of  the  prosecuting  attorney  of  the  county  in 
which  such  prosecution  is  brought,  to  prosecute  the  same  to 
a  final  issue,  in  the  name  of  and  on  behalf  of  the  people  of  the 
state  of  Ilhnois.     Id.  ch.  114,  sec.  155. 

Warehouse  receipt  assignable : 

Warehouse  receipts  for  property  stored  in  any  class  of  public 
warehouses,  as  herein  described,  shall  be  transferable  by  the 
indorsement  of  the  party  to  whose  order  such  receipt  may  be 
issued,  and  such  indorsement  shall  l^e  deemed  a  vaHd  transfer 
of  the  property  represented  by  such  receipt,  and  may  be  made 
either  in  blank  or  to  the  order  of  another.  All  w^arehouse  re- 
ceipts for  property  stored  in  public  warehouses  of  Class  C  shall 


ILLINOIS.  145 

distinctly  state  on  their  face  the  brand  or  distinguishing  marks 
upon  such  property.     Id.  ch.  114,  sec.  156. 

Above  section  construed : 

There  being  no  penalty  for  failure  to  place  upon  the  warehouse 
receipts  the  distinguishing  marks  above  provided  for,  the  fail- 
ure to  do  so  will  not  render  the  receipt  void  in  the  hands  of  an 
assignee  for  value.     Hoffman  v.  Schoyer  et  at.,  143  111.  598. 

False  receipts — Fraudulent  removal : 

Any  warehouseman  of  any  public  warehouse  who  shall  be 
guilty  of  issuing  any  warehouse  receipt  for  any  property  not 
actually  in  store  at  time  of  issuing  such  receipt,  or  who  shall 
be  guilty  of  issuing  any  warehouse  receipt  in  any  respect  fraudu- 
lent in  its  character,  either  as  to  its  date  or  the  quantity,  quahty, 
or  inspected  grade  of  such  property,  or  who  shall  remove  any 
property  from  store  (except  to  preserve  it  from  fire  or  other 
sudden  danger),  without  the  return  and  cancellation  of  any  and 
all  outstanding  receipts  that  may  have  been  issued  to  represent 
such  property,  shall,  when  convicted  thereof,  be  deemed  guilty 
of  a  crime  and  shall  suffer,  in  addition  to  any  other  penalties 
prescribed  by  this  act,  imprisonment  in  the  penitentiary  for  not 
less  than  one,  and  not  more  than  ten  years.  Restricted  as  to 
receipts  issued  before  Oct.  8,  1871.  L.  1871,  1872,  p.  744. 
See  "Criminal  Code,"  ch.  38,  sec.  124,  125.     Id.  ch.  114,  sec.  157. 

Above  section  construed : 

Held,  sections  124  and  125  of  the  criminal  code  did  not  im- 
pliedly repeal  the  above.     Sykes  v.  The  People,  127  111.  117. 

Common-law  remedy  saved : 

Nothing  in  this  act  shall  deprive  any  person  of  any  common- 
law  remedy  now  existing.     Id.  ch.  114,  sec.  158. 

Printed  copy  of  act  posted : 

All  proprietors  or  managers  of  public  warehouses  shall  keep 
posted  up  at  all  times,  in  a  conspicuous  place  in  their  business 
offices,  and  in  each  of  their  warehouses,  a  printed  copy  of  this 
act.    Id.  ch.  114,  sec.  159. 
10 


14G  ILLINOIS   LAWS. 

All  acts  or  parts  of  acts  inconsistent  with  this  act  are  hereby 
repealed.     Id.  ch.  114,  sec.  160. 

Issuance  and  cancellation  of  receipts : 

An  act  pnn-icling  for  the  issuing  and  the  cancellation  of  re- 
ceipts for  public  warehouses  or  warehouses  of  Class  A  or  Class  B, 
in  the  state  of  Illinois,  and  provichng  penalties  for  violation 
thereof.  (Approved  May  11,  1901.  In  force  July  1,  1901. 
L.  1901,  p.  320.J 

Warehouse  receipt— When  to  issue— What  to  contain— To 
be  stamped  and  niarke«l  "  rei?istered  for  cancellation  "—Pen- 
alty for  delivering  f^rain  without  notice  from  the  registrar 
that  said  receipts  have  been  registered  for  cancellation- 
Penalty  : 

Be  it  enacted  by  the  People  of  the  State  of  Illinois  represented 
in  the  General  Assembly:  That  upon  the  receipt  of  any  grain  for 
storage  in  any  public  warehouse  of  Class  A  or  Class  B  (in  coun- 
ties where  a  chief  grain  inspector  has  or  shall  be  lawfully  ap- 
pointed),  the  said  warehouseman  shall  issue  or  cause  to  be 
issued  a  receipt  for  the  number  of  bushels,  the  kind,  the  grade 
of  such  grain,  the  owner  thereof,  and  shall  report  within  twenty- 
four  (24)  hours  to  the  warehouse  registrar  the  amount  of  said 
grain,  the  owner  thereof,  the  number  of  the  receipt  issued  there- 
for, the  kind  and  grade  of  said  grain;  and  that  no  grain  shall  be 
delivered  from  store  from  any  such  jjublic  warehouse  of  Class  A 
or    Chiss  B  fin  counties  where  a  chief  grain  inspector  has  or 
shall  be  lawfully  appointed),  for  which,  or  representing  which, 
any  such  receipt  shall  have  been  issued,  except  upon  the  return 
of  said  receipt  stamped,  or  otherwise  plainly  marked  by  the 
warehouse  registrar  with  the  words  "registered  for  cancella- 
tion," and  the  date  thereof.     And  it  shall  be  the  duty  of  the 
warehouseman,    after   said    receipts    have   been   stamped    and 
marked  "registered  for  cancellation,"  and  within  twenty-four 
(24)  hours  after  the  last  of  the  grain  has  been  delivered,  to  re- 
port said  receipts  to  the  registrar  cancelled;  and  any  warehouse- 
man, agent,  clerk  or  servant  failing  to  issue  receipts  for  grain, 
when  received  as  aforesaid,  shall  be  subject  to  a  fine  of  one 


IL^LINOIS.  147 

hundred  ($100)  dollars  for  each  offense.  And  any  warehouse- 
man, agent,  clerk  or  servant  so  delivering  any  grain,  where 
receipts  have  been  issued  as  aforesaid,  or  inspector  or  person 
connected  with  the  grain  department,  knowingly  permitting 
said  grain  to  be  delivered  without  notice  from  the  registrar 
that  said  receipts  have  been  registered  for  cancellation,  shall 
be  deemed  guilty  of  a  crime,  and  upon  conviction  thereof  shall 
be  fined  an  amount  (equal)  to  the  value  of  the  property  so  de- 
livered, or  imprisonment  in  the  penitentiary  not  less  than  one 
year  nor  more  than  ten  years.     Id.  ch.  114,  sec.  160a. 

An  Act  to  amend  an  act  entitled  "An  act  to  regulate  public 
warehouses  and  the  warehousing  and  ins])ection  of  grain,  and 
to  give  effect  to  article  thirteen  (13)  of  the  constitution  of  the 
state,"  approved  April  25,  1871,  in  force  July  1,  1871,  and  to 
establish  a  committee  of  appeal,  and  prescribe  their  duties. 
(Approved  April,  1873.     In  force  July  1,  1873.) 

Commissiouers  to  establish  grades : 

Be  it  enacted  by  the  People  of  the  State  of  Illinois,  represented 
in  the  General  Assembly,  That  the  board  of  railroad  and  ware- 
house commissioners  shall  establish  a  proper  number  and  stand- 
ard of  grades  for  the  inspection  of  grain,  and  may  alter  or  change 
the  same  from  time  to  time :  Provided,  no  modification  or  change 
of  grades  shall  be  made,  or  any  new  ones  established,  without 
public  notice  being  given  of  such  contemplated  change,  for  at 
least  twenty  days  prior  thereto,  by  publication  in  three  daily 
newspapers  printed  in  each  city  containing  warehouses  of 
Class  A:  And,  provided,  further,  that  no  mixture  of  old  and  new 
grades,  even  though  designated  by  the  same  name  or  distinc- 
tion, shall  be  permitted  while  in  store.     Id.  ch.  114,  sec.  161. 

Committee  of  appeals : 

Within  twenty  days  after  this  act  takes  effect,  the  board  of 
railroad  and  warehouse  connnissioners  shall  appoint  three  dis- 
creet and  competent  persons  to  act  as  a  committee  of  appeals, 
in  every  city  wherein  is  located  a  warehouse  of  Class  A,  who 
shall  hold  their  office  for  one  year  and  until  their  successors 
are  appointed.    And  every  year  thereafter  a  like  committee 


148  ILLINOIS    LAWS. 

of  appeals  shall  be  appointed  by  said  commissioners,  who  shall 
hold  their  office  for  one  year  and  until  their  successors  are  ap- 
pointed: Provided,  said  commissioners  shall  have  power,  in 
their  decision,  to  remove  from  office  any  member  of  said  com- 
mittee at  any  time,  and  fill  vacancies  thus  created  by  the  ap- 
pointment of  other  discreet  persons.     Id.  ch.  114,  sec.  162. 

Appeals — Notices : 

In  all  matters  involving  doubt  on  the  part  of  the  chief  in- 
spector, or  any  assistant  inspector,  as  to  the  proper  inspection 
of  any  lot  of  grain,  or  in  case  of  any  owner,  consignee  or  ship- 
per of  grain,  or  any  warehouse  manager,  shall  be  dissatisfied 
with  the  decision  of  the  chief  inspector  or  any  assistant  in- 
spector, an  appeal  may  be  made  to  said  committee  of  appeal, 
and  the  decision  of  a  majority  of  said  committee  shall  be  final. 
Said  board  of  connnissioners  are  authorized  to  make  all  neces- 
sary rules  governing  the  manner  of  appeals  as  herein  provided. 
And  all  complaints  in  regard  to  the  inspection  of  grain,  and  all 
notices  requiring  the  services  of  the  committee  of  appeal,  may 
be  served  on  said  committee,  or  may  be  filed  with  the  ware- 
house registrar  of  said  city,  who  shall  immediately  notify  said 
committee  of  the  fact,  and  who  shall  furnish  said  committee 
with  such  clerical  assistance  as  may  be  necessary  for  the  proper 
discharge  of  their  duties.  It  shall  be  the  duty  of  said  com- 
mittee, on  receiving  such  notice,  to  immediately  act  on  and 
render  a  decision  in  such  case.     Id.  ch.  114,  sec.  163. 

Conimittee  of  appeals— Oath — Bond — Who  may  serve  on: 

The  said  committee  of  appeals  shall,  before  entering  upon 
the  duties  of  their  office,  take  an  oath,  as  in  case  of  other  in- 
spectors of  grain,  and  shall  execute  a  bond  in  the  penal  sum 
of  five  thousand  dollars ;  with  like  concUtions  as  is  provided  in 
the  case  of  other  insp(;ctors  of  grain,  which  said  bonds  shall  be 
subject  to  the  approval  of  the  board  of  railroad  and  warehouse 
connnissioners.  //  is  further  provided,  that  the  salaries  of  said 
committee  of  appeal  shall  be  fixed  by  the  board  of  railroad  and 
warehouse  connnissioners,  and  be  paid  from  the  inspection  fund, 
or  by  the  party  taking  the  appeal,  under  such  rules  as  the  com- 
mission shall  prescribe;  and  all  necessary  expenses  incurred  in 


ILLINOIS.  149 

carrying  out  the  provisions  of  this  act,  except  as  herein  other- 
wise provided,  shall  be  paid  out  of  the  funds  collected  for  the 
inspection  service  upon  the  order  of  the  commissioners:  Pro- 
vided, that  no  [XM'son  shall  be  appointed  to  serve  on  the  com- 
mittee of  appeals  who  is  a  purchaser  of,  or  receiver  of  grain, 
or  other  articles  to  be  passed  upon  by  said  committee.  (As 
amended  by  act  approved  June  26,  1885.  In  force  July  1,  1885, 
L.  1885,  p.  178.)     Id.  ch.  114,  sec.  164. 

"  Registered  for  collection" — Inspection  fees  : 

No  grain  shall  be  delivered  from  store  from  any  warehouse 
of  Class  A,  for  which  or  representing  which  warehouse  receipts 
shall  have  been  issued,  except  upon  the  return  of  such  receipts 
stamped  or  otherwise  plainly  marked  by  the  warehouse  register 
with  the  words  "registered  for  collection"  and  the  date  thereof; 
and  said  board  of  commissioners  shall  have  power  to  fix  the 
rates  of  charges  for  the  inspection  of  grain,  both  into  and  out 
of  warehouses;  which  charges  shall  be  a  lien  upon  all  grain  so 
inspected  and  may  be  collected  of  the  owner,  receivers  or  ship- 
pers of  such  grain,  in  such  manner  as  the  said  commissioners 
may  prescribe.     Id.  ch.  114,  sec.  165. 

Repeal : 

Section  13  of  the  act  to  which  this  is  an  amendment,  is  hereby 
repealed :  Provided,  the  provisions  contained  in  said  section  shall 
remain  in  force  until  the  grades  for  the  inspection  of  grain  shall 
have  been  established  by  the  commissioners,  as  provided  in 
section  1  of  this  act.  (Grades  fixed  by  commissioners,  July  1, 
1873.)     Id.  ch.  114,  sec.  166. 

Delivery— Penalty : 

Every  railroad  corporation  which  shall  receive  any  grain  in 
bulk  for  transportation  to  any  place  within  the  state,  shall 
transport  and  deliver  the  same  to  any  consignee,  elevator, 
warehouse,  or  place  to  whom  or  to  which  it  may  be  consigned 
or  directed:  Provided,  such  person,  warehouse  or  place  can  be 
reached  by  any  track  owned,  leased  or  used,  or  which  can  be 
used  by  such  corporation;  and  every  such  corporation  shall 
permit  connections  to  be  made  and  maintained  with  its  track 


150  ILLINOIS    LAWS. 

to  and  from  any  and  all  public  houses  where  grain  is  or  may  be 
stored.  Any  such  corporation  neglecting  or  refusing  to  comply 
■  with  the  requirements  of  this  section,  shall  be  liable  to  all  per- 
sons injured  thereby  for  all  damages  wiiich  they  may  sustain 
on  that  account,  whether  such  damages  result  from  any  de- 
preciation in  the  value  of  such  property  by  such  neglect  or 
refusal  to  deliver  such  grain  as  directed,  or  in  loss  to  the  pro- 
prietor or  manager  of  any  pubUc  warehouse  to  which  it  is  di- 
rected to  be  deli\'ered,  and  costs  of  suit,  including  such  rea- 
sonable attorney's  fees  as  shall  be  taxed  by  the  court.  And 
in  case  of  any  second  or  later  refusal  of  such  railroad  corpora- 
tion to  comply  with  the  requirements  of  this  section,  such 
corporation  shall  be  by  the  court,  in  action  on  which  such 
failure  of  refusal  shall  be  found,  adjudged  to  pay,  for  the  use 
of  the  people  of  this  state,  a  sum  of  not  less  than  $1,000,  nor 
more  than  $5,000,  for  each  and  every  such  failure  or  refusal, 
and  this  may  be  a  part  of  the  judgment  of  the  court  in  any 
second  or  later  proceeding  against  such  corporation.  In  case 
any  railroad  corporation  shall  be  found  guilty  of  having  vio- 
lated, failed  or  omitted  to  observe  and  comply  with  the  re- 
quirements of  this  section,  or  any  part  thereof,  three  or  more 
times,  it  shall  be  lawful  for  any  person  interested  to  apply  to 
a  court  of  chancery,  and  obtain  the  appointment  of  a  receiver 
to  take  charge  of  and  manage  such  railroad  corporation  until 
all  damages,  penalties,  costs  and  expenses  adjudged  against 
such  corporation  for  any  and  every  violation  shall,  together 
with  interest,  be  fully  satisfied.     Id.  ch.  114,  sec.  120. 

Appointment — Term ; 

Be  it  enacted  hy  the  People  of  the  State  of  Illinois,  represented 
in  the  General  A^s^emhly:  That  a  commission  which  shall  be 
styled  ''Railroad  and  Warehouse  Conmiission,"  shall  be  ap- 
pointed as  follows:  within  twenty  days  after  this  act  shall  take 
effect,  the  governor  shall  appoint  three  persons  as  such  com- 
missioners, who  shall  hold  their  office  until  the  next  meeting 
of  the  general  assembly,  and  until  their  successors  are  appointed 
and  qualified.  At  the  next  meeting  of  the  general  assembly, 
and  every  two  years  thereafter,  the  governor,  by  and  with  the 
advice  and  consent  of  the  senate,  shall  appoint  three  persons 


ILLINOIS.  151 

as  such  commissioners,  who  shall  hold  their  offices  for  the  term 
of  two  years  from  the  first  day  of  January  in  the  year  of  their 
appointment,  and  until  their  successors  are  appointed  and 
qualified.     Id.  ch.  114,  sec.  167. 

Qualifications  : 

No  person  shall  be  appointed  as  such  commissioner  who  is 
at  the  time  of  his  appointment  in  any  way  connected  with  any 
railroad  company  or  warehouse,  or  who  is  directly  or  in- 
directly interested  in  any  stock,  bond,  or  other  property  of, 
or  is  in  the  employment  of  any  railroad  company  or  ware- 
houseman; and  no  person  appointed  as  such  commissioner  shall 
during  the  term  of  his  office,  become  interested  in  any  stock, 
bond  or  other  property  of  any  railroad  company  or  warehouse, 
or  in  any  manner  be  employed  by  or  connected  with  any  rail- 
road company  or  warehouse.  The  governor  shall  have  power 
to  remove  any  such  commissioner  at  any  time,  in  his  discre- 
tion.    Id.  ch.  114,  sec.  168. 

Oatli— Bond : 

Before  entering  upon  the  duties  of  his  office,  each  of  the  said 
commissioners  shall  make  and  subscribe,  and  file  with  the  secre- 
tary of  state,  an  affidavit,  in  the  following  form:  I  do  solemnly 
swear  (or  affirm  as  the  case  may  be),  that  I  will  support  the 
constitution  of  the  United  States  and  the  constitution  of  the 
state  of  Illinois,  and  that  I  will  faithfully  discharge  the  duties 
of  the  office  of  commissioner  of  railroads  and  warehouses,  ac- 
cording to  the  best  of  my  ability.  And  shall  enter  into  bonds, 
with  security  to  be  approved  by  the  governor,  in  the  sum  of 
$20,000,  conditioned  for  the  faithful  performance  of  his  duty 
as  such  commissioner.     Id.  ch.  114,  sec.  169. 

Statement  by  wareliouseman : 

It  shall  be  the  duty  of  every  owner,  lessee  and  manager  of 
every  public  warehouse  in  this  state  to  furnish  in  writing  under 
oath,  at  such  times  as  such  railroad  and  warehouse  commis- 
sioners shall  require  and  prescribe,  a  statement  concerning  the 
condition  and  management  of  his  business  as  such  warehouse- 
man.    Id.  ch.  114,  sec.  175. 


152  ILLINOIS    LAWS. 

Report  hy  commissioners — Examination : 

Such  commissioners  shall,  on  or  before  the  first  day  of  De- 
cember, in  each  year,  and  oftener  if  required  by  the  governor 
to  do  so,  make  a  report  to  the  governor  of  their  doings  for  the 
preceding  year,  containing  such  facts,  statements  and  explana- 
tions as  will  disclose  the  actual  workings  of  the  system  of  rail- 
road transportation  and  warehouse  business  in  their  bearings 
upon  the  business  and  prosperity  of  the  people  of  this  state, 
and  such  suggestions  in  re'ation  thereto  as  to  them  may  seem 
appropriate,  and  particularly,  first,  whether  in  their  judgment 
the  railroads  can  be  classified  in  regard  to  the  rate  of  fare  and 
freight  to  be  charged  upon  them,  and  if  so,  in  what  manner; 
second,  whether  a  classification  of  freight  can  also  be  made,  and 
if  so,  in  what  manner.  They  shall  also,  at  such  times  as  the 
governor  shall  direct,  examine  any  particular  subject  connected 
with  the  condition  and  management  of  such  railroads  and  ware- 
houses, and  report  to  him  in  writing  their  opinion  thereon  with 
their  reasons  therefor.     Id.  ch,  114,  sec.  176, 


Examinations  of  railroads  and  warehonses — Snits : 

Said  commissioner  shall  examine  into  the  condition  and  man- 
agement, and  all  other  matters  concerning  the  business  of  rail- 
roads and  warehouses  in  this  state,  so  far  as  the  same  pertain 
to  the  relation  of  such  roads  and  warehouses  to  the  public,  and 
to  the  accommodation  and  security  of  persons  doing  business 
therewith;  and  whether  such  railroad  companies  and  ware- 
houses, their  officers,  directors,  managers,  lessees,  agents  and 
employees  comply  with  the  laws  of  this  state  now  in  force,  or 
which  shall  hereafter  be  in  force  concerning  them.  And  when- 
ever it  shall  come  to  their  knowledge,  either  upon  complaint 
or  otherwise,  or  they  have  reason  to  believe  that  any  such  law 
or  laws  have  been  or  are  being  violated,  they  shall  prosecute 
or  cause  to  be  prosecuted  all  corporations  or  persons  guilty  of 
such  violation.  In  order  to  enable  said  commissioners  effi- 
ciently to  perform  their  duties  under  this  act,  it  is  hereby  made 
their  duty  to  cause  one  of  their  number,  at  least  once  in  six 
months,  to  visit  each  county  in  the  state,  in  which  is  or  shall  be 
located  a  railroad  station,  and  personally  inquire  into  the  man- 


ILLINOIS.  153 

agement  of  such  railroatl  and  warehouse  business.     Id.  ch.  114, 
sec.  177. 

Cancellation  of  warehouse  licenses  : 

Said  commissioners  are  hereby  authorized  to  hear  and  de- 
termine ah  a])phcations  for  the  cancellation  of  warehouse  li- 
censes in  this  state  which  may  have  been  issued  in  pursuance 
of  any  laws  of  this  state,  and  for  that  purpose  to  make  and 
adopt  such  rules  and  regulations  concerning  such  hearing  and 
determination  as  may,  from  time  to  time,  by  them  be  deemed 
proper.  And  if,  upon  such  hearing,  it  shall  appear  that  any 
public  warehouseman  has  been  guilty  of  violating  any  law  of 
this  state  concerning  the  business  of  public  warehousemen, 
said  commissioners  may  cancel  and  revoke  the  license  of  said 
public  warehouseman,  and  immediately  notify  the  officer  who 
issued  such  license  of  such  revocation  and  cancellation  and  no 
person  whose  license  as  a  public  warehouseman  shall  be  can- 
celled or  revoked,  shall  be  entitled  to  another  license  or  to  carry 
on  the  business  in  this  state  of  such  public  warehouseman,  until 
the  expiration  of  six  months  from  the  date  of  such  revocation 
and  cancellation,  and  until  he  shall  have  again  been  licensed: 
Provided,  that  this  section  shall  not  be  so  construed  as  to  pre- 
vent any  such  warehouseman  from  delivering  any  grain  on  hand 
at  the  time  of  such  revocation  or  cancellation  of  his  said  license. 
And  all  licenses  issued  in  violation  of  the  provisions  of  this 
section  shall  be  deemed  null  and  void.     Id.  ch.  114,  sec.  178. 

Power  to  examine  books,  etc. : 

The  property,  books,  records,  accounts,  papers  and  proceed- 
ings of  all  such  railroad  companies,  and  all  public  warehouse- 
men, shall  at  all  times,  during  business  hours,  be  subject  to  the 
examination  and  inspection  of  such  commissioners,  and  they 
shall  have  power  to  examine,  under  oath  or  affirmation,  any 
and  all  directors,  officers,  managers,  agents  and  employees  of 
any  such  railroad  corporation,  and  any  and  all  owners,  man- 
agers, lessees,  agents  and  employees  of  such  public  warehouses 
and  other  persons,  concerning  any  matter  relating  to  the  con- 
dition and  management  of  such  business.  Id.  ch.  114,  sec. 
179. 


154  ILLINOIS    LAWS. 

May  exainine  witnesses,  etc. : 

In  making  any  examination  as  contemplated  in  this  act  for 
the  purpose  of  obtaining  information,  pursuant  to  this  act, 
said  commissioners  shall  have  the  power  to  issue  subpoenas 
for  the  attendance  of  witnesses,  and  may  administer  oaths. 
In  case  any  person  shall  willfully  fail  or  refuse  to  obey  such  sub- 
poena, it  shall  be  the  duty  of  the  circuit  court  of  any  county, 
upon  application  of  the  said  commissioners,  to  issue  an  attach- 
ment for  siicli  witness,  and  compel  such  witness  to  attend  be- 
fore the  commissioners,  and  give  his  testimony  upon  such  mat- 
ters as  shall  be  lawfully  required  by  such  commissioners;  and 
the  said  court  shall  have  power  to  punish  for  contempt,  as  in 
other  cases  for  refusal  to  obey  the  process  and  order  of  such 
court.     Id.  ch.  114,  sec.  180. 

Penalty  against  witness : 

Any  person  who  shall  willfully  neglect  or  refuse  to  obey  the 
process  of  sul^poena  issued  by  said  commissioners,  and  appear 
and  testify  as  therein  required,  shall  be  deemed  guilty  of  a 
misdemeanor,  and  shall  be  liable  to  an  indictment  in  any  court 
of  competent  jurisdiction,  and  on  conviction  thereof  shall  be 
punished  for  each  ofTense,  by  a  fine  of  not  less  than  $25  nor 
more  than  $500,  or  by  imprisonment  of  not  more  than  thirty 
days,  or  both,  in  the  discretion  of  the  court  before  which  such 
conviction  shall  be  had.     Id.  ch.  114,  sec.  181. 

Penalty  against  railroad  companies,  warehonsenien,  etc. ; 

Ever}'  railroad  company,  and  every  officer,  agent  or  employee 
of  any  railroad  company,  and  every  owner,  lessee,  manager  or 
employee  of  any  warehouse,  who  shall  willfully  neglect  to  make 
and  furnish  any  report  required  in  this  act,  at  the  time  herein 
required,  or  who  shall  willfully  and  unlawfully  hinder,  delay 
or  obstruct  said  commissioners  in  the  discharge  of  the  duties 
imposed  upon  them,  shall  forfeit  and  pay  a  sum  of  not  less 
than  $100  nor  more  than  .$5,000  for  each  offense,  to  be  recov- 
ered in  an  action  of  debt  in  the  name  of  the  state  of  Illinois; 
and  every  railroad  company,  and  every  officer,  agent  or  em- 
ployee of  any  such  railroad  company,  and  every  owner,  lessee, 
manager,  or  agent  or  employee  of  any  public  warehouse,  shall 


ILLINOIS.  155 

be  liable  to  a  like  penalty  for  every  period  of  ten  days  it  or  he 
shall  willfully  neglect  or  refuse  to  make  such  report.  Id.  ch.  114, 
sec.  182. 

Attorney  general  and  state's  attorney  to  prosecute  suits : 

It  shall  be  the  duty  of  the  attorney  general,  and  the  state's 
attorney  in  every  circuit  or  county,  on  the  request  of  said  com- 
missioners, to  institute  and  prosecute  any  and  all  suits  and  pro- 
ceedings which  they,  or  either  of  them,  shall  be  directed  by  said 
commissioners  to  institute  and  prosecute  for  a  violation  of  this 
act,  or  any  law  of  this  state  concerning  railroad  companies  or 
warehouses,  or  the  officers,  employees,  owners,  operators  or 
agents  of  any  such  companies  or  warehouses.  Id.  ch.  114, 
sec.  183. 

In  name  of  people — Pay — Qui  tani  actions : 

All  such  prosecution  shall  be  in  the  name  of  the  people  of 
the  state  of  Illinois,  and  all  moneys  arising  therefrom  shall  be 
paid  into  the  state  treasury  by  the  sheriff  or  other  officer  col- 
lecting the  same;  and  the  state's  attorney  shall  be  entitled  to 
receive  for  his  compensation,  from  the  state  treasury  on  bills 
to  be  approved  by  the  governor,  a  sum  not  exceeding  ten  per 
cent  of  the  amount  received  and  paid  into  the  state  treasury 
as  aforesaid:  Provided,  this  act  shall  not  be  construed  so  as  to 
prevent  any  person  from  prosecuting  any  qui  tarn  action  as 
authorized  by  law,  and  of  receiving  such  part  of  the  amount 
recovered  in  such  action  as  is  provided  under  any  law  of  this 
state.     Id.  ch.  114,  sec.  184. 

Riglits  of  individuals  saved : 

This  act  shall  not  be  so  construed  as  to  waive  or  affect  the 
right  of  any  person  injured  by  the  violation  of  any  law  in  re- 
gard to  railroad  companies  or  warehouses,  from  prosecuting 
for  his  private  damages  in  any  manner  allowed  by  law.  Id. 
ch.  114,  sec.  185. 

An  act  to  provide  that  the  railroad  and  warehouse  commis- 
sion may  keep  and  use  a  common  seal  for  the  authentication 
of  its  acts,  records  and  proceedings.  (Approved  June  19,  1891. 
In  force  July  1,  1891,  L.  1891,  p.  185.) 


156  ILT.INOIS  LAWS. 

Seal — How  records,  etc.,  authenticated  : 

Be  it  enacted  by  the  People  of  the  State  of  Illinois,  represented 
in  the  General  Assembly:  That  the  raih-oad  and  warehouse  com- 
mission of  this  state  ma}^,  for  the  autJientication  of  its  records, 
process  and  proceedings,  adopt,  keep  and  use  a  common  seal, 
of  which  seal  judicial  notice  shall  be  taken  in  all  courts  of  this 
state;  and  any  process,  writ,  notice  or  other  paper  which  the 
said  commission  may  be  authorized  by  law  to  issue  shall  be 
deemed  sufficient  if  signed  by  the  secretary  of  said  commission 
and  authenticated  by  such  seal;  and  all  acts,  orders,  proceed- 
ings, rules  of  inspection,  entries,  minutes,  schedules  and  rec- 
ords of  said  commission  may  be  proved  in  any  court  of  this 
state  by  a  copy  thereof,  certified  to  by  the  secretary  of  said 
commission,  and  with  the  seal  of  said  commission  attached. 
Id.  ch.  114,  sec.  185cf. 

An  act  to  provide  for  the  appointment  of  state  weigh-mas- 
ters.  (Approved  June  23,  1883.  In  force  July  1,  1883,  L.  1883, 
p.  172.) 

Weigh-iii aster — Appointment  of : 

Be  it  enacted  by  the  People  of  the  State  of  Illinois,  represented 
in  the  General  Assembly:  That  there  shall  be  appointed  by  the 
Railroad  and  Warehouse  Commissioners  in  all  cities  where  there 
is  state  inspection  of  grain,  a  state  weigh-master  and  such  as- 
sistants as  shall  be  necessary.     Id.  ch.  114,  sec.  186. 

Duties  of : 

Said  state  weigh-master  and  assistants  shall,  at  the  places 
aforesaid  supervise  and  have  exclusive  control  of  the  weighing 
of  grain  and  other  property  which  may  be  subject  to  inspection, 
and  the  inspection  of  scales  and  the  action  and  certificate  of 
such  weigh-master  and  assistants  in  the  discharge  of  their 
aforesaid  duties  shall  be  conclusive  upon  all  parties  in  interest. 
Id.  ch.  114,  sec.  187. 

Fix  fees : 

The  Board  of  Railroad  and  Warehouse  Commissioners  shall 
fix  the  fees  to  be  paid  for  the  weighing  of  grain  or  other  property, 
which  fees  shall  be  paid  equally  by  all  parties  interested  in  the 


ILLINOIS.  157 

purchase  and  sale  of  the  property  weighed,  or  scales  inspected 
and  tested.     Id.  eh.  114,  sec.  188. 

Weigh-iiiaster—Qualiflcatious— Bond— Compensation: 

Said  state  weigh-master  and  assistants  shall  not  be  a  mem- 
ber of  any  board  of  trade  or  association  of  like  character;  they 
shall  give  bonds  in  the  sum  of  five  thousand  dollars  ($5,000) 
conditioned  for  the  faithful  discharge  of  their  duties,  and  shall 
receive  such  compensation  as  the  Board  of  Railroad  and  Ware- 
house Commissioners  shall  determine.     Id.  ch.  114,  sec.  189. 

May  adopt  rules : 

The  Railroad  and  Warehouse  Commissioners  shall  adopt  such 
rules  and  regulations  for  the  weighing  of  grain  and  other  prop- 
erty as  they  shall  deem  proper.     Id.  ch.  114,  sec.  190. 

Neglect  of  duty— Penalty : 

In  case  any  person,  warehouseman  or  railroad  corporation, 
or  any  of  their  agents  or  employees,  shall  refuse  or  prevent  the 
aforesaid  state  weigh-master  or  either  of  his  assistants  from 
having  access  to  their  scales,  in  the  regular  performance  of  their 
duties  in  supervising  and  w^eighing  of  any  grain  or  other  prop- 
erty in  accordance  with  the  tenor  and  meaning  of  this  act  they 
shall  forfeit  the  sum  of  one  hundred  ($100)  dollars  for  each 
offense,  to  be  recovered  in  an  action  of  debt,  before  any  justice 
of  the  peace,  in  the  name  of  the  people  of  the  state 'of  Illinois; 
such  penalty  or  forfeiture  to  be  paid  to  the  county  in  which  the 
suit  is  brought,  and  shall  also  be  required  to  pay  all  costs  of 
prosecution.     Id.  ch.  114,  sec.  191. 

Fraudulent  receipts — Issuing  by  warehousemen  and 
others : 

Whoever  fraudulently  makes  or  utters  any  receipt,  or  other 
written  evidence  of  the  delivery  or  deposit  of  any  grain,  flour, 
pork,  wool,  salt,  or  other  goods,  wares  or  merchandise,  upon  any 
wharf  or  place  of  storage,  or  in  any  warehouse,  mill,  store  or 
other  building,  when  the  quantity  specified  therein  has  not  in 
fact  been  delivered  or  deposited  as  stated  in  such  receipt  or 
other  evidence  of  the  delivery  or  deposit  thereof,  and  is  not, 
at  the  time  of  issuing  the  same  still  in  store,  and  the  property 


158  1LLI>;01S    LAWS. 

of  the  person  to  whom  or  to  whose  agent  the  receipt  is  issued, 
or  for  the  whole  or  any  part  of  which  any  other  receipt  is  out- 
standing or  uncancelled,  shall  be  imprisoned  in  the  penitentiary 
not  less  than  one  nor  more  than  ten  years.     Id.  ch.  38,  sec.  124. 

Removal  of  warehouse  goods  : 

Whoever,  having  given  any  such  receipt  or  written  evidence 
of  deposit  or  storage  as  is  specified  in  the  preceding  section, 
or  being  in  the  possession  or  control  of  such  property,  shall 
sell,  incumber,  ship,  transfer,  or  in  any  manner  remove  from 
the  place  of  stoi-age,  or  allow  the  same  to  be  done,  any  such 
grain,  flour,  pork,  wool,  salt,  or  other  goods,  wares  and  mer- 
chandise, without  the  written  consent  of  the  holder  of  such 
receipt  or  other  evidence  of  deposit  or  storage,  except  in  cases 
of  necessity  for  the  purpose  of  saving  such  property  from  loss 
or  damage  by  fire,  flood  or  other  accident,  shall  be  imprisoned 
in  the  penitentiary  not  less  than  one  nor  more  than  ten  years. 
Id.  ch.  38,  sec.  125. 

Embezzlement  by  commission  merchants  and  others  : 

If  any  warehouseman,  storage,  forwarding  or  commission 
merchant,  or  other  person  selling  on  commission,  or  his  agent, 
clerk  of  servant,  shall  convert  to  his  own  use  any  fruit,  grain, 
flour,  beef,  pork  or  other  property,  or  the  proceeds  or  avails 
thereof,  without  the  consent  of  the  owner  thereof,  or  shall  fail 
to  pay  over  the  avails  or  proceeds  thereof,  less  his  proper  charges, 
on  demand  by  the  i^erson  entitled  to  receive  the  same,  or  his 
duly  authorized  agent,  he  shall  be  fined  not  exceeding  $1,000, 
or  confined  in  the  county  jail  not  exceeding  one  year,  or  both, 
and  shall  be  liable  to  the  person  injured  in  double  the  value  of 
the  property  or  amount  of  the  money  so  converted.  Id.  ch.  38, 
sec.  78. 


ILLINOIS.  159 

DECISIONS  AFFECTING  WAREHOUSEMEN. 

A. 

Bailment  and  sale — The  depositing  of  grain  in  a  public  ware- 
house and  the  mixing  thereof  ivith  other  grain  is  a  bailment. 

If  grain  be  deposited  in  a  public  warehouse  in  this  state  to 
be  mixed  with  the  grain  of  other  persons,  under  the  warehouse 
act,  such  depositary  becomes  the  owner  of  an  ecjual  quantity 
of  grain  of  the  same  kind  and  quantity  as  that  deposited  and 
the  title  to  such  deposited  grain  does  not  pass  to  the  ware- 
houseman. In  short,  it  is  a  bailment  only  and  not  a  sale. 
National  Bank  of  Pontiac  v.  Langan,  28  111.  App.  401 ;  Meadow- 
craft  V.  German  National  Bank,  95  111.  124;  Canadian  Bank  v. 
McCrea,  106  111.  281. 

Same — When  sale  and  not  a  bailment — Private  warehousemen 
— Receipt  construed. 

Where  plaintiff  delivered  wheat  to  the  defendant,  a  mill- 
owner,  and  received  therefor  a  receipt  in  which  it  was  stated 
that  the  defendant  had  received  the  wheat  and  that  he  was 
to  take  the  market  price  for  the  same  whenever  he  saw  fit  to 
sell,  it  was  held  that  this  was  not  a  contract  of  storage  but  a 
sale  of  the  wheat  and  that  the  title  passetl  to  the  millowner. 
The  fact  that  the  wheat  was  mixed  with  other  wheat  in  the 
mill  does  not  change  the  case.  The  wheat  being  subsequently 
destroyed  by  fire,  the  defendant  was  liable  for  the  value  thereof. 
Ives  V.  Hartley,  51  111.  520;  Lonergan  v.  Stewart,  55  111.  44. 

Same — Sale — Inability  to  return  same  grain — Destruction  by 
fire. 

A  warehouseman  received  grain  w^ithout  any  special  contract 
from  which  it  could  be  shown  whether  it  was  a  bailment  or  a 
sale.  The  evidence  showed  that  there  was  a  notice  posted  in 
the  warehouse,  in  which  it  was  stated  that  grain  would  be  re- 
ceived for  storage  for  one  month  free  of  charge  and  other  state- 
ments from  which  it  would  be  inferred  that  the  transaction 
was  a  bailment ;  but  the  evidence  further  showed  that  the  ware- 
houseman disposed  of  the  grain  and  counted  on  being  able  to 


160  ILLINOIS   DECISIONS. 

subsequently  purchase  a  sufficient  quantity  of  grain  in  axQut 
that  the  depositor  made  a  demand  for  the  same  or  gave  to 
the  warehouseman  an  order  to  sell.  Subsequently,  a  fire  oc- 
curred and  the  warehouse  and  contents  were  destroyed.  In 
an  action  against  the  warehouseman  for  the  value  of  the  grain, 
it  was  held  that  he  was  liable  on  the  ground  that  the  trans- 
action was  a  sale  and  not  a  bailment.  Cloke  v.  Dowse,  38  111. 
App.  252,  aff'd  137  111.  393. 

Same — The  principle  determining  when  it  is  a  bailment  and 
when  a  sale. 

The  principle  determining  when  the  transaction  constitutes 
a  bailment  and  when  a  sale  is  as  follows:  When  the  identical 
thing  delivered  is  to  be  restored,  though  in  an  altered  form, 
the  contract  is  one  of  bailment  and  the  title  to  the  property 
is  not  changed,  but  when  there  is  no  obligation  to  restore  the 
specific  article  and  the  warehouseman  is  at  liberty  to  restore 
another  thing  of  equal  value  he  becomes  the  debtor  to  make 
the  return,  and  the  property  is  changed— it  is  a  sale.  Evi- 
dence was  received  to  prove  a  custom  among  warehousemen 
showing  that  depositors  who  stored  grain  never  expected  to 
receive  the  identical  grain  back,  but  to  get  their  money  for  the 
same  at  the  market  price  on  the  day  on  which  the  demand  was 
made.     Lonergan  v.  Stewart,  55  111.  44. 

Sarjie — Special  agreement  with  ivarehouseman — Instruction  to 
jury — Bailment. 

It  was  perfectly  proper  for  one  to  make  an  agreement  with 
his  warehouseman  for  the  mixing  of  the  grain,  by  which  the 
title  might  be  determined;  this  entirely  independent  of  the 
constitution  and  the  statutes  relating  to  warehousemen.  The 
e\'idence  as  to  the  terms  of  the  agreement  was  conflicting,  the 
defendant  testifying  positively  to  facts  which  would  make  the 
agreement  one  of  bailment,  the  plaintiff's  testimony  was  to  the 
effect  that  the  transaction  constituted  a  sale.  The  court  re- 
fused to  give  an  instruction  prayed  for  by  defendant  to  the 
effect  that  if  they  believed  his  testimony  they  should  find  for  him 
this  held  reversible  error,     Ardinger  v.  Wright,  38  111.  App.  98.. 


ILLINOIS.  161 

B. 

Ordinary  care — Grain  'purchased  for  customers — Different  rule. 

Where  warehousemen  |)urcha.sed  grain  for  others,  which  was 
subsequently  stored  in  their  warehouse,  the  following  instruc- 
tion to  the  jury  in  an  action  brought  against  the  warehouse- 
men for  the  recovery  of  the  value  of  the  grain,  held  correct; 
that,  by  the  terms  of  the  receipt  given  by  the  defendants  to 
the  plaintiff,  the  defendants  became  the  bailors  of  the  plaintiff 
and  were  only  bound  to  take  reasonable  care  of  the  grain  and 
have  it  ready  for  delivery  for  a  reasonable  time,  and  if  the  same 
was  injured  without  the  negligence  of  the  defendant,  they  were 
not  responsible  for  such  injury,  and  that  they  had  a  right  to 
charge  storage  after  a  reasonable  time,  if  the  jury  believed  from 
the  evidence  that  the  plaintiff  failed  to  take  it  away  within  a 
reasonable  time  after  being  notified  to  do  so.  Myers  et  at.  v. 
Walker,  31  111.  353;  St.  Louis,  A.  &  T.  H.  R.  R.  Co.  v.  Mont- 
gomery, 39  111.  335;  Chicago  &  A.  R.  R.  v.  Scott,  42  111.  132. 

Who  a  public  warehouseman. 

The  fact  that  one  keeps  a  public  warehouse  is  of  itself  notice 
to  the  world  that  the  property  therein  stored  is  held  for  others, 
at  least  sufficient  to  put  parties  interested  on  inquiry.  Na- 
tional Bank  of  Pontiac  v.  Langan,  28  111.  App.  401 ;  Broadwell  v. 
Howard,  77  111.  305. 

Warehousemen — Duty  to  the  public — Public  agencies — Pro- 
hibited from  speculation  in  grain  stored  in  their  own  warehouses. 

The  evidence  showed  that  the  defendant  was  the  owner  of  a 
large  warehouse  in  the  city  of  Chicago,  doing  business  as  a  pub- 
lic warehouseman  under  the  warehouse  act  of  1871,  and  amend- 
ments thereto,  that  it  was  his  practice  to  purchase  grain  in 
large  quantities,  overbidding  legitimate  grain  dealers  to  the 
extent,  in  many  instances,  of  one  fourth  of  one  cent  per  bushel, 
and  thereafter  disposing  of  the  same  by  under-selling  such  bid- 
ders and  obtaining  his  profit  by  virtue  of  his  storage  charges. 
The  effect  was  to  practically  prohibit  competition  and  resulted 
in  the  warehousemen  becoming  the  owners  of  a  large  proportion 
of  the  grain  in  the  market.  It  was  held  that  pulolic  ware- 
houses, established  under  the  law,  were  public  agencies  and 
11 


162  ILLINOIS   DECISIONS. 

the  defendant  as  a  licensee  pursued  a  public  employment  and 
that  he  was  therefore  charged  with  a  public  duty ;  further,  that 
his  course  of  dealing  was  inconsistent  with  the  safe  and  im- 
portant performance  of  his  duty  to  the  public.  The  evidence 
failed  to  sustain  the  contention  of  the  defencUmt  that,  at  the 
time  of  the  passage  of  the  warehouse  act,  it  was  the  custom 
among  owners  of  large  warehouses  to  store  their  own  grain 
therein.     Central  Elevator  Co.  v.  The  People,  174  111.  203. 

Approaches  to  warehouses — A^ot  bound  to  a  high  degree  of  care — 
Approaches  to  railroad  terminals  distinguished. 

A  warehouseman  is  not  obliged  to  exercise  as  high  a  degree  of 
care  as  a  common  carrier  in  providing  for  safe  approaches  to 
his  warehouse.  It  would  not  be  consistent  with  the  analogy 
of  the  law  to  hold  that  a  warehouseman,  who  is  only  held  to 
ordinary  care  in  conducting  his  business,  should  be  held  to  an 
extraordinary  care  in  protecting  persons  in  coming  to  his  ware- 
house to  transact  business  with  him.  He  is  hable  only  for 
ordinary  care  in  the  structure  of  his  warehouse  and  appurte- 
nances.    Buckingham  v.  Fisher,  70  111.  121. 

Degree  of  liability — Real  <)})ject  of  the  transaction. 

Where  plaintiff  hired  the  defendant,  a  warehouseman,  to 
remove  her  goods  and  store  them,  and  several  months  there- 
after to  return  them  to  her,  it  was  held  that  this  was  clearly  a 
contract  of  storage  and  that  the  defendant  could  not  be  held 
to  the  liability  of  a  common  carrier.  Storage  was  the  main 
thing  in  contemplation  of  the  parties  and  the  removal  of  the 
goods  to  the  warehouse  and  the  return  to  the  bailor,  in  the  same 
city,  were  necessarily  iiicidoiital  to  it.  The  defendant  was 
obliged  to  exercise  only  ordinary  care.  Armfield  v.  Humphrey, 
12  111.  App.  90. 

Conversion — Action  in  assumpsit — Tort  waived. 

If  warehousemen  have  wrongfully  converted  property  in- 
trusted to  their  care  the  bailor  has  the  right  to  waive  the  tort 
and  sue  in  assumpsit  for  the  money  received  on  the  sale  of  the 
grain.  Ives  v.  Hartley,  51  111.  520;  Leonard  v.  Dunton,  51  111. 
482. 


ILLINOIS.  163 

Cliaiuje  of  owner  ship — Warehouse  conducted  by  bank — Same — 
Liability  for  conversion — Ultra  vires  no  defense. 

The  defendant,  a  national  bank,  took  possession  of  a  ware- 
house, after  default  in  the  payment  of  obligations  to  it,  as 
security  for  the  payment  of  such  debts.  The  refusal  to  deliver 
grain  stored  therein,  to  the  holders  of  the  warehouse  receipts, 
constituted  a  conversion  for  which  the  bank  was  liable.  The 
fact  that,  under  the  charter  of  the  bank,  it  was  not  authorized 
to  conduct  a  warehouse  business,  is  no  defense.  The  question 
is  whether  or  not  there  was  a  conversion,  and,  if  there  were,  it 
makes  no  difference  whether  the  bank  was  authorized  by  its 
charter  to  conduct  a  warehouse  business  or  not.  German  Na- 
tional Bank  v.  Meadowcroft,  4  111.  App.  630,  aff'd  95  111.  124. 

Pleading — Averment  to  furnish  storage. 

The  averment  that  the  appellees  had  kept  and  performed  all 
the  covenants  on  their  part  and  at  all  times  were  willing  to 
furnish  storage  for  the  company  to  the  amount  of  one  million 
bushels,  is  not  an  averment,  or  the  equivalent  of  an  averment, 
that  they  were  at  all  times  willing  and  ready  to  furnish  the 
storage  that  may  be  necessary  for  a  business  of  five  millions 
of  bushels  in  a  year.  Therefore,  a  denmrrer  to  a  petition  con- 
taining the  above  allegation  should  have  been  sustained.  Chi- 
cago, M.  &  St.  P.  Ry.  Co.  V.  Hoyt,  37  111.  App.  64;  Same  v. 
Same,  50  111.  App.  583  ;  Same  v.  Same,  4:4:  111.  App.  48. 

Warehouse  commission — Action  of,  iyi  depriving  a  warehouse- 
man of  his  license,  reviewable  by  the  courts — Certiorari. 

Where  the  Railroad  and  Warehouse  Commission  of  Illinois 
had  revoked  the  license  of  defendants,  alleging  that  they  vio- 
lated the  law  of  the  state,  concerning  the  business  of  public 
warehousemen,  it  was  contended  on  the  behalf  of  the  commis- 
sion, that  its  action  in  investigating  the  facts  and  determining 
that  there  had  been  a  violation  of  the  law  by  the  warehouse- 
man was  a  judicial  act  involving  the  exercise  of  judicial  dis- 
cretion, and,  therefore,  was  not  reviewable  by  the  courts.  The 
court  held  that  this  contention  could  not  be  maintained  and, 
therefore,  it  reviewed  on  certiorari  the  evidence  of  the  Rail- 
road and  Warehouse  Commission  where  it  had  revoked  the 


164  ILLINOIS   DECISIONS. 

license  of  tlie  warehouseman  for  the  alleged  violation  of  law. 
Cantrell  et  al.  v.  Seaverns,  64  111.  App.  273. 

Same — Warehouseman  storing  his  own  grain  prohibited — No 
implication  of  the  legality  of  such  practice  derived  from  inaction 
of  warehouse  commission. 

It  appeared  that,  after  the  act  of  1871,  which,  among  other 
tilings,  provided  that  warehousemen  should  not  deposit  their 
ow^n  grain  in  their  warehouses ;  that  the  practice  of  doing  so  was 
continued,  and  it  further  appeared  that. the  Warehouse  Com- 
mission knew  of  the  continuance  of  this  practice.  It  was  held 
that  the  commission  was  derelict  in  its  duty,  that  it  should  have 
brought  such  cases  to  the  attention  of  the  attorney  general  for 
prosecution,  and  that  the  contention  that  this  inaction  on  the 
part  of  the  commission  amounted  to  a  construction  of  the  law 
that  such  practice  was  legal,  could  not  be  sustained.  Central 
Elevator  Co.  v.  TJie  People,  174  111.  203. 

Same — The  right  of  the  Railroad  and  Warehouse  Commission  to 
inspect  grain  a  legal  one — Police  power. 

In  an  action  by  the  people  against  one  w^ho  had  formerly  been 
chief  inspector  of  grain,  appointed  by  the  Railroad  and  Ware- 
house Commission,  for  the  recovery  of  fees  collected  by  him, 
which  he  had  appropriated  to  his  own  use,  it  was  held  that 
such  appointment  having  been  made  by  said  commission,  pur- 
suant to  authority  conferred  upon  it  by  the  act  of  1871,  by 
which  it  was  created,  was  a  proper  delegation  of  police  power 
by  the  legislature,  and  further,  that  the  provisions  made  by 
the  Railroad  and  Warehouse  Commission,  in  regard  to  the  fees  to 
be  charged  for  such  a  collection  was  a  proper  delegation  of 
power  by  the  legislature.     The  People  v.  Harper  et  al.,  91  111.  357. 

Inspectors  of  grain — '^Legally  appointed  inspectors^'  defined. 

The  warehouse  law  of  1871,  as  amended  by  act  of  1897,  pro- 
vided that  any  person  who  shall  assume  to  act  as  an  inspector 
of  grain,  w^ho  has  not  first  been  so  appointed  and  sworn,  shall 
be  held  to  be  an  imposter,  etc.,  and  subject  to  a  fine  therein 
provided.  It  was  held  that  such  inspectors,  in  order  to  be 
legally  appointed  must  have  received  their  commission  pur- 


ILLINOIS.  165 

suant  to  the  terms  of  the  amendatory  act  of  1879  read  in  con- 
nection with  the  original  warehouse  law  of  1871.  Pubhc  in- 
spection being  authorized  under  section  14,  private  inspec- 
tion thereupon  became  unlawful.  Dutcher  v.  The  People,  11 
111.  App.  312. 

Evidence — Delivery — Storage  in  warehouse — Custom. 

Delivery  pursuant  to  a  contract  of  sale  cannot  be  shown  by 
storage  in  warehouse,  nor  will  evidence  be  received  to  show 
that  such  was  the  custom  when  it  has  been  proved  that  the 
party  claiming  the  property  had  no  knowledge  of  any  such 
custom.     Larson  v,  Johnson,  42  111.  App.  198. 

Same — Recitals  in  receipts  given  hy  draymen. 

The  court  instructed  the  jury  that  statements  contained  in 
the  receipts  signed  for  the  warehouse  company  by  the  draymen 
or  teamsters,  that  the  flour  when  received  by  them  was  in  good 
condition,  were  not  binding  on  the  warehouse  company  as  ad- 
missions. Further,  that  such  receipts  could  only  be  considered 
as  evidence  of  the  course  of  business  employed  by  the  ware- 
houseman in  the  transactions  to  which  they  relate.  This  in- 
struction was  held  to  be  correct.  Central  Warehouse  Co.  v. 
Sargeant,  40  111.  App.  438. 

H. 

Storage  charges — Failure  to  pay — Demand. 

It  appeared  from  the  evidence  that  the  defendant,  a  ware- 
houseman, received  wheat  for  storage,  for  which  there  should 
be  no  charge  for  a  short  time  in  order  that  the  plaintiff  might 
have  the  opportunity  to  remove  the  same.  The  warehouse- 
man also  agreed  to  deliver  the  wheat  upon  demand  by  the 
owner.  In  the  trial  of  the  case  for  the  recovery  of  the  wheat 
or  the  value  thereof,  it  was  held  that  it  was  error  for  the  court 
to  instruct  the  jury  that,  if  it  found  that  the  plaintiff  had  not 
offered  to  pay  a  reasonable  charge  before  suit  brought,  it  should 
find  for  the  defendant.  The  appellate  court  held  that  plain- 
tiff was  entitled  to  judgment  for  the  value  of  the  wheat  and  that 
the  defendant  was,  at  most,  entitled  to  a  deduction  from  such 


166  ILLINOIS    DECISIOSfS. 

amount  equivalent  to  a  reasonable  charge  for  storage.     Leon- 
ard V.  Dunton  et  al.,  51  111.  482. 

Same — Liability  for — Warehouse  receipt. 

Corn  was  removed  from  a  warehouse  by  the  assignee  of 
the  warehouse  receipt  ;  in  an  action  against  him  for  the  re- 
covery of  the  storage  charges,  it  was  held  that  although  the 
Hen  against  the  corn  for  the  charges  was  gone,  the  warehouse- 
man could  still  hold  such  assignee  personally  responsible  there- 
for. Where  one  accepts  a  warehouse  receipt  he,  at  the  same 
time,  assumes  liability  to  pay  storage  charges  accrued  against 
property  represented  thereby.     Cole  v.  Tyng  et  ah,  24  111,  100. 

Lien — Not  lost  by  fraudulent  issue  of  receipt. 

The  mere  fact  that  a  warehouseman  fraudulently  issues  re- 
ceipts for  goods  not  on  store  with  him  does  not  deprive  him  of 
his  lien  for  storage  charges  against  other  goods  in  his  posses- 
sion.    Low  v.  Martin,  18  111.  286. 

Same — WJien  goods  are  surrendered  only  lien  allowed  will  he 
that  stipidated  for. 

At  the  time  of  the  disastrous  fire  in  Chicago  there  were  more 
than  1,000,000  bushels  of  grain  stored  in  the  warehouses,  a 
large  proportion  of  which  was  destroyed.  The  Board  of  Trade, 
with  the  consent  of  the  warehousemen,  took  possession  of  all 
wheat  remaining  in  the  warehouses  immediately  after  the  fire, 
the  warehousemen  reserving  a  lien  of  two  cents  per  bushel  for 
storage.  The  grain  was  sold,  and  after  the  proceeds  were  ob- 
tained the  warehousemen  claimed  an  amount  in  addition  to 
the  sum  agreed  u]:)on  for  storage.  It  was  held  that  they  were 
entitled  to  but  two  cents  per  bushel  less  the  expense  of  pre- 
serving it.  The  manner  in  which  the  warehousemen  released 
the  property  constituted  a  waiver  of  all  liens  thereon  except 
such  as  were  expressly  reserved  by  the  sti]oulation  existing  be- 
fore the  sale.     Board  of  Trade  v.  Buckingham  et  al.,  65  111.  72. 

Same — Lost  by  parting  with  the  goods  not  revived  if  possession 
he  again  obtained. 
The  court  ruled   that,  where  goods  were   redelivered  by  a 


TLLINOIS.  167 

warehouseman  to  the  consignee  upon  receipt  of  the  note  of  the 
consignee  for  the  freight  due,  that  the  hen  which  the  warehouse- 
man held  was  lost  and  that  when  the  property  again  came  into 
possession  of  the  warehouseman,  there  was  no  revival  of  the 
lien.  The  above  ruling  was  held  correct.  Hale  v.  Barrett,  26 
111.  195. 

Same — Not  subject  to  attachment  as  property  of  the  warehouse- 
man. 

Where,  in  an  action  against  a  warehouseman,  an  attachment 
is  levied  by  the  sherif!"  against  not  only  the  warehouse  itself 
but  against  the  property  stored  therein  on  the  ground  that  the 
warehouse  company,  having  a  lien  on  all  the  property  stored 
for  its  lawful  storage  charges,  that  such  lien  was  attachable 
property.  The  court  held  that  this  was  a  wrongful  levy.  While 
it  is  true  that  such  warehouse  company  had  a  lien  on  goods 
stored,  it  was  but  a  mere  personal  lien  and  was  nothing  more 
than  a  right  to  retain  possession  of  said  goods  until  the  charges 
for  storage  were  paid  or  tendered.  Liens  of  this  character  con- 
fer no  rights  beyond  the  mere  right  to  retain  the  property — they 
give  no  power  of  sale.  It  follows,  therefore,  that  after  the 
sheriff  has  seized  stored  goods,  by  virtue  of  his  attachment 
writ,  and  taken  same  into  liis  possession,  no  right  or  interest 
of  the  warehouseman  in  the  goods  remains  in  the  sheriff's 
hands  which  could  be  subject  to  sale  on  execution.  It  was 
further  held  that,  as  the  property  was  stored  in  a  public  ware- 
house, it  was  protected  from  removal  therefrom  by  the  policy 
of  the  law.  Hanchett  v.  First  National  Bank,  25  111.  App. 
274. 

Contract  between  warehouseman  and  railroad  company — In- 
ability to  store  amount  of  grain  offered — Reasonable  construction 
of  contract. 

A  railroad  company  agreed  with  a  warehouseman  that  the 
"total  amount  of  grain  received  at  its  elevator  shall  be  at 
least  5,000,000  bushels  on  the  average  for  each  year,"  during 
the  term  of  its  lease.  It  appeared  from  the  evidence  that  the 
warehouseman  could  not  store  at  any  one  time  more  than 
1,100,000   bushels.     The   above   section   of   the   contract   was 


168  ILLINOIS   DECISIONS. 

construed  to  mean  that  the  railroad  company  was  obUged, 
during  the  ten  years  in  which  the  agreement  was  to  continue 
in  force,  to  offer  to  the  warehouseman  an  average  of  5,000,000 
bushels  of  wheat  per  year.  Dunlap  et  al.  v.  Chicago,  M.  &  St. 
P.  Ry.  Co.,  151  lU.  409. 

Warehouseman  has  right  to  terminate  storage  contract. 

Where  a  warehouseman  made  a  contract  with  the  depositor 
of  grain,  by  the  terms  of  which  the  warehouseman  agreed  to 
store  the  same  at  one-fourth  (\)  cent  per  month  until  sold, 
it  was  held  that  the  warehouseman  could  terminate  such  con- 
tract upon  giving  notice  to  the  depositor  of  his  intention  to  do 
so.  The  court  said  that  it  was  not  reasonable  to  suppose  that 
a  warehouseman,  by  a  contract  of  this  kind,  should  be  ham- 
pered through  life  for  the  inconsiderable  compensation  stipu- 
lated for  therein.     Cushman  v.  Hayes,  46  111.  145. 

I. 

Commingling  of  goods — When  replevin  may  he  maintained. 

In  order  to  maintain  an  action  of  replevin  against  a  ware- 
houseman, where  the  property  has  been  commingled  with  other 
property  stored,  the  plaintiff  must  show  that  the  property  re- 
plevied was  his  property,  that  is,  the  identical  property  deliv- 
ered in  store;  or  that  the  intermixture  by  defendant,  which 
made  identification  of  his  property  practically  impossible,  was 
the  fault  of  the  warehouseman,  or  that  it  was  done  at  least 
without  consent  of  the  plaintiff.     Low  v.  Martin,  18  111.  286. 

Same — Custom — Constitutes  sale — Depositary  becomes  debtor  of 
owner. 

It  was  shown  that  it  was  customary  in  Chicago  for  commis- 
sion merchants  to  receive  grain  consigned  to  them  by  their 
customers  and  to  immediately  deposit  the  same  in  a  public 
warehouse,  where  it  would  be  mixed  with  other  grain  of  a  like 
grade  and  quality,  it  was  held  that,  upon  this  being  done,  the 
warehouseman  did  not  hold  the  grain  as  a  bailee  but  that  he 
was  the  debtor  of  the  owner  who  was  represented  by  his  com- 
mission merchant.  If  the  owner  had  desired  his  grain  kept 
separately  and  the  identical  grain  sold  when  he  might  give 


iLLlNOIS.  169 

the  order,  he  could  have  so  provided  under  the  terms  of  the 
Warehouse  Act.     Bailey  v.  Bensley  et  at.,  87  111.  556. 

Same — Right  to  maintain  trover  not  affected  thereby — A  bail- 
ment and  not  a  sale. 

Where  oats  were  stored  in  a  warehouse  and  mingled  with 
other  oats,  it  was  held  that  this  fact  did  not  deprive  the  owner 
of  his  right  to  maintain  trover.  Further,  that,  by  the  inter- 
mixture, his  title  to  the  property  was  not  affected  and  that 
each  individual  owner  would  be  entitled  to  retain  and  control 
an  ownership  of  his  particular  portion  of  the  whole;  that  neither 
of  the  parties  in  interest  would  have  a  right  to  dispose  of  the 
other's  share  of  the  entire  amount,  and  that  if  one  did  so, 
trover  would  lie  for  the  conversion.  German  National  Bank  v. 
Meadowcroft,  95  111.  124;  Hoive  v.  Munson,  65  111.  App.  674. 

Same — Common  property — In  case  of  loss,  to  he  borne  pro  rata 
— Equity  jurisdiction. 

Where  grain  belonging  to  several  different  owners  was  stored 
in  a  public  warehouse  in  a  common  mass,  without  objection 
on  the  part  of  the  several  owners,  it  became  common  property 
owned  by  all,  in  the  proportions  in  which  each  had  contributed 
to  the  common  mass.  It  being  owned  in  common,  the  owners 
are  all  liable  to  sustain  any  loss  which  may  occur  by  diminu- 
tion, decay,  or  otherwise,  in  proportion  to  their  respective  in- 
terests. Persons  who  purchase  warehouse  receipts  become  like- 
wise liable  to  sustain  their  pro  rata  share  of  any  loss,  precisely 
as  would  the  persons  from  whom  they  purchased  the  receipt. 
A  court  of  equity,  as  part  of  its  ordinary  and  inherent  jurisdic- 
tion, will,  in  view  of  the  fact  that  the  property  is  a  trust  one, 
compel  the  proper  protection  thereof,  and  will  require  the 
trustee  to  render  the  court  an  account  of  his  proceedings  under 
the  trust.  Dole  et  al.  v.  Olmstead,  36  111.  150;  Same  v.  Same, 
41  111.  344. 

Same — Assignment  by  warehouseman — Partial  delivery. 

Where,  in  the  above  case,  the  warehouseman  assigned  all  the 
interest  which  he  had  in  grain  stored  in  his  warehouse,  belong- 
ing to  various  parties,  which  grain  was  there  commingled  with 


170  ILLINOIS   DECISIONS. 

grain  of  his  own,  it  was  held  that  such  assignee  held  title  to 
all  of  the  grain  as  trustee,  that  he  was  bound  to  deliver  the 
grain,  belonging  to  the  holders  of  receipts,  which  was  in  store 
at  the  time,  and,  having  done  so,  he  was  exonerated  from 
further  hability.  If,  however,  it  then  appean^d  that  any  grain 
remained,  the  warehouseman  was  entitled  thereto.     Id. 

Substitution  of  other  property — Equitable  lien — Estoppel. 

A  warehouseman  becoming  insolvent,  a  receiver  was  ap- 
pointed, upon  petition  of  his  creditors.  It  appeared  that  he 
had  issued  warehouse  receipts  for  a  large  amount  of  goods 
stored  in  his  warehouse  and  that  the  owner  of  the  goods  had 
pledged  the  receipts  to  a  bank  to  secure  a  loan.  Subsequently, 
and  without  the  bank's  knowledge,  the  goods  represented  by 
the  receipts  were  removed  by  the  depositor,  with  the  consent 
of  the  warehouseman,  and  other  goods  were  substituted  in  their 
place.  It  was  contended  in  behalf  of  the  general  creditors  that, 
by  this  substitution,  the  bank  lost  its  lien  upon  the  property. 
It  was  held  that  the  bank  had  a  right  to  suppose  that  the  prop- 
erty pledged  to  them  remained  in  the  warehouse  subject  to 
their  order  at  any  time,  on  surrender  of  the  receipt;  that  the 
action  of  the  owner  of  the  goods  and  of  the  warehouseman  con- 
stituted a  violation  of  the  statute  pertaining  to  warehousemen, 
and  a  fraud  against  the  bank.  It  was  further  held  that  the 
bank  had  an  equitable  lien  upon  the  stored  property  and  that 
the  warehouseman  was  estopped  to  deny  that  the  goods  in  his 
warehouse  were  the  identical  goods  represented  by  the  receipt 
held  by  the  bank.  It  was  further  held  that  the  appointment 
of  the  receiver  did  not  affect  the  claim  of  the  bank,  which  claim 
was  a  lien  against  the  goods  prior  to  the  appointment.  Hoff- 
man et  al.  V.  Schoyer  et  al.,  143  111.  598. 

Substitution  of  other  goods — Constitutes  a  fraud. 

If  a  warehouseman,  who  has  issued  a  negotiable  warehouse 
receipt  for  property  stored  with  him,  allows  the  owner  thereof 
to  remove  part  of  the  goods  so  stored  and  substitute  other 
goods  in  their  stead,  violates  the  law  of  the  state  and  commits  a 
fraud  against  such  person  as  may  then  be  the  ownei"  or  holder 
of  the  receipt.     Id. 


ILLINOIS.  171 

K. 

Attachment — Grain  deposited  in  mass  not  subject  to,  in  an  ac- 
tion against  warehouseman. 

A  deposit  of  grain  in  a  common  mass  in  a  public  warehouse 
is  a  bailment  and  not  a  sale  thereof  ;  therefore,  in  an  action 
against  a  warehouseman,  an  attachment  cannot  be  legally  levied 
against  the  grain  of  any  other  depositors,  the  title  thereto  re- 
maining in  them.  National  Bank  of  Pontiac  v.  Langan,  28  111. 
App.  401. 

L. 

Replevin — When  it  lies — Grain  in  bulk. 

In  order  to  maintain  an  action  of  replevin,  if  the  grain  stored 
has  been  mixed  with  other  grain,  the  plaintiff  must  show  that 
such  intermixture  was  a  wrongful  act  of  the  warehouseman  or, 
at  least,  was  done  without  the  consent  of  the  plaintiff.  Low 
V.  Martin,  18  111.  286. 

Same — Breach  of  bond — Burden  of  proof. 

When  the  conditions  of  the  replevin  bond  are  broken,  any 
person  injured  may  sue  in  the  name  of  the  sheriff  to  his  own 
use.  Where  a  bank  is  one  of  the  parties  in  interest  in  which 
an  action  is  brought  on  a  replevin  bond,  the  court  instructed 
the  jury  to  the  effect  that  the  defendant  must  show,  in  addi- 
tion to  other  facts,  that  it  took  the  warehouse  receipts  pledged 
with  it  as  collateral  without  notice  of  any  fraud,  whereas  the 
correct  instruction  should  have  been  that  the  plaintiff  must 
show  by  the  evidence  that  the  defendant  took  the  receipts  with 
notice  of  the  fraud.  Hanchett  v.  Buckley  et  al,  27  111.  App. 
159;  Atkin  v.  Moore,  82  111.  240;  Replevin  Act,  sees.  10,  25, 
ch.  119,  R.  S.;  Jones  v.  Simpson,  116  U.  S.  609;  Montague  v. 
Hanchett,  20  111.  App.  222. 

M. 

Pledge — Right  to  sell — Notice. 

A  pawnee  is  not  bound  to  wait  for  a  sale  under  a  decree  of 
foreclosure  as  a  mortgagee  is  in  the  case  of  a  mortgage  upon 
land,  but  he  may  sell,  without  judicial  process,  upon  giving 
a  reasonable  notice  to  the  debtor  to  redeem.  The  notice  to 
the  pledgor  is  indispensable,  as  to  the  time  and  place  of  sale. 


172  ILLINOIS   DECISIONS. 

in  the  absence  of  a  contract  that  the  pledgee  may  sell  of  his 
own  motion.     Cushman  v.  Hayes,  46  111.  145. 

N. 

Negligence — Misdelivery — Warehouseman  responsible — Sam- 
pler's ticket  not  a  warehouse  receipt. 

It  appeared  from  the  evidence  that  it  was  the  custom  in 
Peoria,  when  grain  was  received,  to  have  a  sampler,  who  was 
employed  by  the  Board  of  Trade,  make  an  examination  of  the 
wheat  and  issue  what  was  known  as  a  sampler's  ticket  therefor, 
together  with  a  sample  of  the  wheat.  This  was  done,  and  the 
wheat  stored  with  defendant,  a  warehouseman.  A  sale  of  the 
wheat  took  place  on  the  Board  of  Trade  and  the  purchaser  re- 
ceived, in  accordance  with  the  custom,  the  sampler's  ticket 
with  the  name  of  the  seller  and  of  the  purchaser  written  thereon, 
together  with  the  sample.  The  warehouseman  delivered  to  the 
purchaser  the  wheat  represented,  upon  the  presentation  to  him 
of  such  ticket.  It  appeared  that  the  check  given  by  the  pur- 
chaser, for  the  payment  of  such  wheat,  was  not  paid.  It  was 
held  that  the  warehouseman  acted  beyond  his  authority  when 
he  delivered  the  wheat  upon  the  presentation  of  this  ticket, 
that  in  the  absence  of  authority  from  the  seller  such  ticket  was 
not  equivalent  to  a  warehouse  receipt,  and  that  the  warehouse- 
man was  responsible  to  the  owner  for  the  value  of  the  wheat. 
Peoria  &  Pekin  Ihiiori  Ry.  Co.  v.  Buckley  et  al.,  114  111.  337. 

Cold  storage — Agreement  as  to  temperature — Instruction  to  the 
jury. 

In  an  action,  brought  by  plaintiff  for  the  recovery  of  storage 
charges,  for  having  placed  in  cold  storage  a  quantity  of  onions 
belonghig  to  the  defendant,  it  appeared  that  there  was  a  great 
conflict  of  testimony  as  to  whether  there  was  an  agreement  con- 
cerning the  temperature  in  which  the  onions  were  to  be  stored. 
Under  these  circumstances,  instruction  to  the  jury  to  the  fol- 
lowing effect  was  held  erroneous:  If  it  found,  from  the  evidence, 
that  the  plaintiff  violated  his  contract  with  the  flefendant  in 
failing  to  keep  the  onions  in  question  in  the  temperature  agreed 
upon  and  if  the  onions  rotted  as  a  result  of  such  failure,  the  jury 
was  then  to  find  for  the  defendant.     From  the  above  charge. 


ILLINOIS.  173 

the  jury  might  conclude  that  a  certain  temperature  had  been 
agreed  upon,  whereas  this  fact  was  in  controversy.  Western 
Union  Cold  Storage  Co.  v.  Ermeling,  73  111.  App.  394. 

0. 

Measure  of  damages. 

Where,  in  an  action  for  the  conversion  of  wheat  stored,  the 
market  price  thereof  being  proved,  it  is  a  fair  presumption  that 
the  warehouseman  procured  such  price  and  the  measure  of 
damages  is  the  value  of  the  wheat  at  the  time  it  should  have 
been  dehvered.     Leonard  v.  Dunton  et  at.,  51  111.  482. 

Same — Where  taking  not  tortious. 

Where  there  has  been  a  breach  of  contract  of  bailment  and 
the  taking  of  the  property  has  been  tortious,  assumpsit  lies  and 
the  value  of  the  property  converted,  at  the  time  of  demand,  is 
the  proper  measure  of  damages.  The  actual  amount  received 
is  the  proper  measure  where  the  taking  was  not  tortious.  O'Reer 
V.  Strong,  13  111.  690;  McDonald  v.  Brown,  16  111.  320;  Cushman 
V.  Hayes,  46  111.  145. 

Same — Cold  storage. 

In  a  case  where  goods  are  received  in  cold  storage  and  it  is 
alleged  that  they  have  depreciated  in  value  as  result  of  failure 
on  the  part  of  the  warehouseman  to  maintain  the  requisite 
temperature,  the  proper  measure  of  damages  should  be  the 
market  value  of  the  goods  on  the  day  of  demand  less  the  storage 
charges  due  thereon.  Western  Union  Cold  Storage  Co.  v.  Ermel- 
ing, 73  111.  App.  394. 

P. 

Insurance — Joint  oiuners  have  an  insurable  interest — Other  in- 
surance. 

A  party  stored  grain  in  a  warehouse  and  procured  a  policy 
of  insurance  thereon  in  the  name  of  a  member  of  the  firm  doing 
the  warehouse  business.  There  was  an  indorsement  on  the 
policy  to  the  effect  that  loss,  if  any,  should  be  paid  to  the  de- 
positor as  his  interest  may  appear.  In  an  action,  brought  by 
such  depositor,  against  the  insurance  company,  after  the  de- 
struction of  the  grain  by  fire,  it  was  held  that  the  action  could 


174  ILLINOIS    DECISIONS. 

be  inaintained  by  him  and  that  the  issuance  of  the  policy  to  a 
member  of  the  firm  operating  the  warehouse  was  proper  and 
that  he,  or  his  partner,  had  an  insurable  interest  in  the  grain. 
The  policy  also  provided  that  there  should  be  no  other  insur- 
ance placed  thereon.  It  appeared  that  the  warehousemen  had 
insured  the  property  in  another  company  and  that  the  loss  was 
payable  to  them.  Held  that  this  did  not  constitute  "other 
insurance"  within  the  meaning  of  the  policy.  Traders'  Insur- 
ance Co.  V.  Pacaud  et  al.,  150  111.  245. 

Contract  by  warehouseman  to  insure — Not  responsible  if  suit 
on  policy  terminates  against  him  without  his  fault. 

Defendant,  a  warehouseman,  contracted  with  plaintiff  to  re- 
ceive and  store  a  large  number  of  barrels  of  apples,  the  ware- 
houseman agreeing  to  keep  them  insured  with  responsible  com- 
[)anies.  This  the  warehouseman  did  and,  after  destruction  by 
fire,  the  warehouseman  brought  an  action  against  the  companies 
for  the  recovery  of  the  amount  stated  in  the  policies.  The 
warehouseman  had  given  a  receipt  to  the  owner  which  provided 
that  a  large  proportion  of  the  property  stored  was  to  be  insured 
only  up  to  a  date  prior  to  the  destruction  by  fire.  This  receipt 
had  been  given  to  the  owner,  at  his  request,  and  on  account 
thereof,  the  warehouseman  failed  to  recover  from  the  insur- 
ance company  for  the  loss  of  the  property.  In  an  action  be- 
tween the  owner  of  the  goods  and  the  warehouseman,  it  was 
held  that,  as  the  latter  had  complied  with  all  the  terms  of  his 
contract,  he  could  not  be  compelled  to  bear  this  loss  but  that 
it  must  fall  upon  the  owner.     Cole  v.  Favorite,  69  111.  457. 

Warehouse  receipts — Issued  by  private  warehousemen — Quasi- 
negotiable. 

Warehouse  receipts,  issued  by  private  agents,  or  by  ware- 
housemen other  than  those  described  by  the  statute  of  this 
state  as  public  warehousemen,  are  on  the  same  footing  as  bills 
of  lading  in  respect  of  their  ^wasf-negotiable  character.  Nor- 
throp et  al.  V.  First  National  Bank,  27  111.  App.  572;  Western 
Union  Ry.  Co.  v.  Wagner  et  al.,  65  111.  197. 


ILLINOIS.  175 

Same — Receipts  issued  by  j actors. 

Where  it  appeared  that  a  hrni,  which  had  never  been  in  the 
business  of  warehousing,  issued  what  were  in  form  warehouse 
receipts  against  their  own  property  stored  therein  ;  it  was  held 
that  these  were  not  warehouse  receipts  within  the  meaning  of 
the  statutes  and  that  the  holder  thereof  was  in  no  better  position 
than  one  who  held  an  unrecorded  chattel  mortgage.  Trum- 
bull et  at.  V.  Union  Trust  Co.  et  at.,  33  111.  App.  319;  aff'd, 
137  111.  146. 

Warehouse  receipts — Failure  to  state  distinguishing  marks  as 
required  by  statute — Effect. 

Where  warehouse  receipts  were  issued  for  tea  and  other 
property  stored,  and  they  failed  to  have  stated  thereon  the 
distinguishing  marks  as  required  by  section  24  of  the  act  of 
April  25,  1871,  it  was  contended  that  the  effect  of  such  failure 
was  that  they  were  void  since  they  were  issued  in  violation  of 
law.  It  was  held  that,  since  the  statute  did  not  impose  any 
penalty  in  the  case  of  such  omission,  the  failure  did  not  in  any 
wise  vitiate  or  impair  the  lien  against  the  property  represented, 
in  favor  of  the  person  holding  the  receipt  as  security.  In  such 
a  case,  evidence  will  be  received  to  ascertain  the  exact  prop- 
erty intended  to  be  represented  by  the  receipt.  Hoffman  et  al. 
V.  Schoyer  et  al,  143  111.  598. 

Same — Receipt  held  to  be  a  sale  by  ivay  of  mortgage. 

Parties  delivered  to  a  warehouseman  a  large  quantity  of 
wheat  and  at  the  same  time  delivered  to  him  an  instrument  in 
which  it  was  stated  that  the  wheat  was  delivered  to  the  ware- 
houseman free  of  all  incumbrance  except  that  held  by  the 
warehouseman  and  that  the  latter  was  at  liberty  to  dispose  of 
the  same  and  to  deduct  his  claim  for  storage  and  all  accrued 
costs  and  charges  and  to  pay  the  balance  to  the  owner;  further, 
that  the  assignment  of  such  receipt  by  the  warehouseman  should 
at  once  vest  in  the  holder  full  title  and  ownership  in  the  property 
mentioned  the  same  as. if  the  receipt  had  been  originally  issued 
to  him.  It  was  held  that  this  did  not  constitute  a  ware- 
house receipt  but  was  a  sale  by  way  of  mortgage.  Snydacker 
V.  Blatchley  et  al,  72  111.  App.  519. 


176  ILLINOIS   DECISIONS. 

Same — When  a  valid  tender. 

Where,  under  a  contract  of  sale  of  wheat,  the  seller  tenders 
warehouse  receipt,  this  has  been  held  to  constitute  a  vaHd 
tender  unless  the  purchaser  objects  thereto.  Where  the  pur- 
chaser is  absent,  a  mere  readiness  to  tender  warehouse  receipt 
for  the  property  cannot  be  construed  to  be  a  vahd  tender 
thereof.  McPherson  v.  Gale,  40  111.  368;  McPherson  v.  Hall, 
44  111.  264. 

Same — Interpretation — Execution  against  warehouseman. 

Where  a  warehouseman  received  corn  in  storage  and  issued 
a  receipt  which  was  regular  in  all  respects  but  that  it  had  at 
the  end  thereof  ''Subject  to  their  order  for  all  advances  of 
money  on  the  same,"  it  was  held  that  this  expression  did  not 
reduce  the  transaction  to  a  mere  pledge.  The  testimony  of 
the  warehouseman  showed  that  he  purchased  this  corn  with 
money  furnished  by  the  party  in  whose  name  the  receipt  was 
issued.  Under  these  facts,  an  execution  issued  against  the 
warehouseman  would  not  lie  against  the  corn.  Cool  et  al.  v. 
Phillips  &  Carmichael,  66  111.  216. 

Same — Same — Free  storage — Reasonable  time — Notice. 

A  warehouseman  received  a  quantity  of  corn  and  issued  a 
receipt  therefor  in  which  it  was  stated  that  the  same  was  re- 
ceived free  of  storage  charges  and  was  to  be  placed  on  boats 
to  be  sent  by  the  owner.  It  was  held  that  the  warehouseman 
was  only  obliged  to  keep  the  same  free  of  storage  for  a  rea- 
sonable time,  and,  after  notice  to  the  owner,  storage  could 
be  charged  at  a  reasonable  rate.  Myers  et  al.  v.  Walker,  31 
111.  353;  Same  v.  Sajne,  24  111.  123. 

Same — Same — Where  warehouseman  sells  the  goods  and  sub- 
sequently receives  them  for  storage — Not  subject  to  execution  against 
him. 

The  law  does  not  prohibit  a  public  warehouseman  from  sell- 
ing his  own  grain  and,  if  he  does  so  in  good  faith,  he  may,  as 
well  as  any  one  else,  become  its  future  custodian.  The  fact 
that  he  keeps  a  public  warehouse  is  of  itself  notice  to  the  world 
that  the  property  therein  stored  is  held  for  others,  at  least, 
sufficient  to  put  parties  interested  on  inquiry.     Under  such 


ILLINOIS.  177 

circumstances,  an  execution  cannot  be  validly  issued  against 
property  stored  in  his  warehouse  in  the  name  of  his  purchaser. 
Broadwell  v.  Howard  et  al.,  77  111.  305. 

Same — Negotiability — Statute  construed. 

Warehouse  receipts  are  not  negotiable  instruments  within 
the  meaning  of  the  statute  of  the  state  of  Illinois.  Under  the 
rules  of  construction  that  a  statute  is  not  to  be  construed  as 
changing  the  common  law  further  than  its  terms  expressly  de- 
clare, it  was  held  that  a  negotiable  instrument  must  be  an 
absolute  and  unconditional  promise  to  pay  money  or  deliver 
property  at  a  time  that  will  certainly  happen.  It  may  be  un- 
known in  advance  when  it  will  transpire  but  it  must  be  abso- 
lutely certain  that  it  will  be  sometime.  Although  it  may  be 
in  the  power  of  the  party  to  whom  the  promise  is  made  to  render 
it  certain,  by  his  subsequent  act,  this  will  not  be  sufficient. 
It  cannot  be  such  a  time  as  will  depend  upon  his  will  or  his 
pleasure.  Under  the  statutes  a  warehouseman  is  not  responsi- 
ble for  wheat  destroyed  by  fire  in  the  absence  of  negligence, 
nor  is  he  pledged  to  redeliver  unless  the  receipt  is  properly  in- 
dorsed and  all  the  proper  charges  paid  ;  it  is,  therefore,  impos- 
sible to  know,  in  advance,  with  absolute  certainty,  that  the 
warehouseman  will  ever  be  required  to  redeliver  the  wheat. 
It  is  precisely  as  if  the  promise  were  to  redeliver  upon  con- 
dition that  none  of  these  things  allowed  as  excuses  for  non- 
delivery should  intervene,  as  well  as  all  future  conditions  actu- 
ally written  in  the  receipt.  It  does  not  follow  that,  because 
the  statute  has  made  bills  of  lading  and  warehouse  receipts 
negotiable  by  indorsement  and  delivery,  that  all  the  conse- 
quences of  indorsement  and  delivery  of  bills  and  notes  before 
maturity  ensue,  or  are  intended  to  result  from  such  negotia- 
tion. Canadian  Bank  v.  McCrea  et  al,  106  111.  281 ;  Burton  v. 
Curyea,  40  111.  320;  Shaw  v.  R.  R.  Co.,  101  U.  S.  557;  Western 
Union  R.  R.  Co.  v.  Wagner,  65  111.  197;  Chicago  Dock  Co.  v. 
Foster,  48  111.  507.  See  also  Northrop  v.  First  National  Bank, 
27  111.  App.  527,  and  the  cases  there  cited. 

Saine — Sa7ne — Suit  by  assignee. 

A  warehouse  receipt  was  duly  indorsed  to  plaintiff,  who  re- 
12 


178  ILLINOIS    DECISIONS. 

ceived  at  the  same  time  a  certificate  stating  that  the  condition 
of  the  property  represented  by  it  was  good.  It  subsequently 
appeared  that  the  property  was  not  in  the  condition  stated  in 
the  certificate,  which  was  dehvered  to  the  original  holder  of 
the  receipt.  It  was  held  under  such  conditions,  that  the  as- 
signee could  maintain  an  action  for  this  breach,  and  that,  under 
the  statutes  of  the  state,  warehouse  receipts  are  made  negotia- 
ble instruments,  not  possessing,  however,  all  the  qualities  of 
negotiable  paper,  which  furnish  full  protection  to  the  innocent 
holder,  but  are,  nevertheless,  negotiable  to  the  extent  of  trans- 
ferring to  the  assignee  all  the  interest,  rights,  and  remedies, 
of  the  original  assignor  thereof.  A  judgment  in  the  suit  of 
the  indorsee  would  be  a  bar  to  another  action  against  the 
defendant.     Sargent  v.  Central  Warehouse  Co.,  15  111.  App.  553. 

Sa7ne — Same — Assignor  not  liable — Custom. 

In  an  action,  brought  by  plaintiff  against  defendant,  to  re- 
cover back  the  purchase  money  paid  by  the  former  to  the  latter 
in  the  purchase  of  whiskey,  the  transfer  of  which  was  repre- 
sented by  warehouse  receipts,  it  was  held  that  the  purchaser 
could  look  only  to  the  warehouseman.  In  this  case,  it  ap- 
peared that  the  defendant  offered  to  prove  that  it  was  a  cus- 
tom, well  known  in  the  whiskey  trade,  that  the  seller  of  ware- 
house receipts  was  never  looked  to  as  the  responsible  party 
but  that  sole  reliance  was  placed  upon  the  warehouseman.  It 
was  held  that  such  custom  or  usage  should  have  been  allowed 
to  have  been  proved.     Mida  v.  Geissman,  17  111.  App.  207. 

Same — Bona  fide  holder,  protected. 

Plaintiff  sold  certain  grain,  represented  by  warehouse  receipts, 
which  were  duly  transferred  to  the  ])ui'chaser,  and  received  his 
check  in  payment  therefor.  The  purchaser  thereu]X)n  attached 
such  warehouse  receipts  to  a  draft,  drawn  upon  one  in  another 
city,  and  deposited  them  to  his  credit  in  the  defendant  bank. 
The  check  given  by  the  purchaser  was  not  presented  until  the 
next  day  when  payment  was  refused,  in  the  meantime  the  pur- 
chaser having  failed.  Tlic  plaintiff  thereupon  sued  tho  bank 
in  trover  for  the  value  of  the  wheat.  It  was  held  that  the  bank 
was  a  bona  fide  holder  of  the  receipt  and  hence  not  liable  in 


1LLI^•0IS.  179 

such  action.  The  court  stated  that,  in  view  of  the  fact  that 
the  sale  was  for  cash  it  was  conditional  upon  the  payment  to 
the  plaintiff  of  the  check  given  for  the  wheat  and,  therefore, 
he  could  properly  demand  its  return  from  the  purchaser.  Hide 
&  Leather  National  Bank  v.  West  et  at.,  20  111.  App.  61. 

Same — Collateral  security — Estoppel. 

Where  warehouse  receipts  were  pledged  by  the  bailor  as 
collateral  security  for  a  loan,  it  was  held  that,  where  there 
was  no  evidence  to  show  that  the  lender  knew  of  any  facts 
impairing  the  title  of  the  bailor  to  such  gootls,  such  lender  will 
be  protected  when  classed  with  the  general  creditors,  in  case 
of  the  insolvency  of  the  bailor.  Further,  it  was  shown  that 
part  of  the  goods  originally  stored  had  been  removed  and 
other  goods  substituted  in  their  place.  This  fact  not  being 
known  to  the  person  holding  the  receipt  as  collateral  it  did 
not  afTect  the  security,  although  the  warehouseman  violated 
the  statute  and  committed  a  fraud  against  such  party  by  al- 
lowing substitution  of  goods.  Under  the  above  facts,  the 
receipt  holder  became  entitled  as  against  the  bailor  to  an 
equitable  lien  on  the  merchandise,  such  lien  arising,  if  on  no 
other,  at  least  upon  the  ground  of  estoppel.  Hoffman  et  al. 
V.  Schoyer  et  al,  143  111.  598;  Union  Trust  Co.  v.  Trumbull, 
137  111.  146. 

Same — Same — Legal  effect  of  sale — Burden  of  proof  on  plain- 
tiff- 

The  pledge  of  a  warehouse  receipt  as  collateral  security, 
to  secure  the  payment  of  a  note,  is,  in  legal  effect,  a  sale  to 
the  bank  of  the  property  called  for  by  the  receipt  for  a  valua- 
ble consideration  and  vests  the  legal  title  thereto  in  the  bank. 
The  burden  is  upon  the  plaintiff  to  show  that  the  defendant 
bank  took  with  notice  of  fraud  in  the  original  purchase.  Han- 
chett  V.  Buckley  et  al,  27  111.  App.  159;  Chicago  Dock  Co.  v. 
Foster,  48  111.  507;  Jewett  v.  Cook,  81  111.  266;  0.  &  M.  R.  R. 
Co.  V.  Kerr,  49  111.  458. 

Same — Action  by  one  holding  as  collateral  security. 

Where  a  person  who  held  a  warehouse  receipt  as  collateral 


180  "  ILLINOIS    DECISIONS. 

security  brought  an  action  in  case  against  the  warehouseman; 
upon  demurrer  to  the  declaration,  in  which  it  was  alleged  that 
the  receipt  was  fraudulently  issued,  it  was  held  that  a  person 
holding  warehouse  receipts  could  properly  maintain  such  an 
action  and  that  it  was  immaterial  whether  the  loss  to  the  plain- 
tiff, from  the  wrongful  act  of  the  defendant,  consisted  of  his 
being  dei)rived  of  his  money  or  the  grain.  Low  v.  Martin,  18 
111.  290. 

Sa?ne — Warehouseman's  ohligation  upon. 

Persons  holding  grain  receipts  have  only  the  obligation  of 
the  warehouseman  for  the  proper  storage  and  delivery  of  their 
grain,  according  to  the  terms  of  their  receipts,  or,  in  case  of 
default,  to  recover  of  the  warehouseman  the  damages  growing 
out  of  a  breach  of  the  contract.  The  giving  of  the  receipts 
creates  no  specific  or  general  lien  on  the  property  of  the  ware- 
houseman. Dole  V.  Olmstead,  36  111.  150;  Same  v.  Same,  41 
111.  344. 

Same — Fraudulent  unless  they  truly  represent  the  property  in 
store. 

A  warehouseman  issued  receipts,  in  the  name  of  a  bank,  to 
secure  the  payment  of  loans  made  to  him  by  the  bank.  The 
statements  contained  in  such  receipts,  as  to  the  kind  of  goods 
which  they  represented,  were  false.  It  was  contended  that,  in 
view  of  the  fact  that  the  statements  were  known  to  the  bank 
to  be  untrue,  the  provisions  in  the  warehouse  act,  in  relation 
to  the  issuance  of  false  receipts,  did  not  apply.  The  court  held 
that  this  contention  was  not  correct,  that  the  act  included  the 
issuance  of  any  warehouse  receipt  which  was  in  any  wise  false 
or  fraudulent  and  that  the  receipts  are  required,  by  the  act, 
to  be  the  true  representatives  of  the  property  actually  in  store 
and  that  their  issuance  is  prohibited  under  any  other  conditions 
or  circumstances.  Further,  that  this  was  the  purpose  of  the 
legislature  is  manifest  from  its  other  provisions  which  make 
warehouse  receipts  transferable  in  lieu  of  the  property  which 
they  represent.     Sykes  v.  The  People,  127  111.  117. 

Same — Goods  not  in  existence  when  issued. 

Where  the  evidence  showed  that  a  receipt,  issued  by  one 


ILLINOIS.  181 

who  was  not  a  public  warehousenuui,  represented  goods  which 
were  not  in  existence  ut  the  time,  it  was  held  that  sucli  receipt 
was  void.  It  was  not,  in  tact,  a  warehouse  receipt  at  all 
within  the  meaning  of  the  statutes.  If  any  of  the  goods,  which 
were  represented,  were  in  existence,  the  receipt  would  simply 
constitute  an  acknowledgment,  by  the  person  having  issued  it, 
that  he  had  received  such  merchandise.  Montgomery,  Ward 
&  Co.  V.  Union  Trust  and  Savings  Bank,  71  111.  App.  20. 

Same — Parol  evidence  excluded. 

In  an  action  upon  a  warehouse  receipt  evidence  in  support 
of  the  claim,  that  it  was  understood  between  the  parties  that 
the  wheat  should  be  stored  free  of  charge  for  a  short  time  only, 
will  not  be  received  as  this  would  be  an  attempt  to  vary  the 
terms  of  the  receipt,  which  is  a  contract  between  the  parties, 
by  parol  evidence.     Leonard  v.  Dunton,  51  111.  482. 

Same — Purpose  of  surrender  to  warehouseman — Erroneous  in- 
struction. 

In  an  action  against  a  warehouseman,  for  the  value  of  grain, 
where  the  plaintiff  was  not  in  the  possession  of  the  receipt,  the 
court  instructed  the  jury  as  follows:  "If  the  jury  believe  from 
the  evidence  that  the  warehouse  receipt  in  evidence  was  not 
held  by  the  plaintiff  at  the  time  of  the  levy  of  the  execution, 
offered  in  evidence,  but  had  been  surrendered  to  the  warehouse- 
man prior  to  that  time,  then  the  plaintiff  is  not  entitled  to  any 
of  the  property  replevied,  by  reason  of  his  once  ha^^ng  held 
such  receipt."  It  was  held  that  this  instruction,  when  applied 
to  the  evidence  tending  to  show  that  the  receipt  was  surren- 
dered for  the  purpose  of  securing  the  delivery  of  the  grain,  was 
clearly  erroneous.     Nelson  et  al.  v.  Mclntyre,  1  111.  Apj).  603. 

Injuries  to  ivarehouse  employees — When  warehouseman  not 
liable — Improper  instruction  to  jury. 

Where  it  appeared,  in  an  action  brought  by  one  who  had 
been  employed  in  a  w^arehouse,  against  the  owners  thereof,  for 
personal  injuries  received  while  in  the  performance  of  his  duties, 
that  the  plaintiff  was  injured  by  reason  of  the  defective  condi- 
tion of  a  trigger  in  a  trapdoor  through  which  grain  was  dumped 


182  ILLINOIS    DECISIONS. 

into  the  bins  in  the  warehouse.  Tlie  court  instructed  the  jury 
that,  in  this  case,  it  would  not  be  sufficient  for  the  defendants 
simply  to  prove  that  they  had  purchased  proper  and  safe  ma- 
cliinery  but  that  if  it  appeared  by  the  pre])ond(M-ance  of  evidence 
that  the  same  was  not  kept  in  a  safe  condition  or  that  the  dump 
in  (juestion  was  defective  and  by  reason  thereof  the  alleged  in- 
jury resulted,  then  the  })laintiff  is  entitled  to  recover,  provided 
he  exercised  due  care.  It  was  held  that  this  instruction  was 
erroneous,  for  no  degree  of  care  on  the  part  of  the  defendants 
would  exonerate  them  from  liability  for  injury  actually  caused 
by  a  defect  in  their  machinery.  It  practically  attempts  to 
make  them  insurers.     Wilson  v,  Kelly,  52  111.  App.  124. 

U. 

Penal  sections  of  warehouse  act  are  embraced  in  the  title  thereof, 
and  are  valid. 

A  warehouseman  was  indicted  under  that  provision  of  the 
warehouse  act  which  declares  it  to  be  a  crime  to  issue  false  or 
fraudulent  warehouse  receipts.  The  contention  was  made,  in 
his  behalf,  that  this  provision  of  the  warehouse  law  was  void 
for  the  reason  that  it  was  not  embraced  in  the  title  of  the  act, 
that  title  being  "An  act  to  regulate  public  warehousemen  and 
the  warehousing  and  inspection  of  grain  and  to  give  effect  to 
article  1.3  of  the  constitution  of  the  state."  It  was  held  that 
the  section  under  consideration  was  manifestly  germane  to  the 
purpose  of  the  act  as  stated  in  this  title,  and,  therefore, 
the  aboA^e  contention  could  not  be  sustained.  It  was  also  con- 
tended that  this  section  of  the  warehouse  act  was  repealed  by 
sections  124  and  125  of  the  criminal  code.  The  court  held  that 
the  ])rovisions  of  this  section  were  not  repugnant  to  the  ware- 
house act  and,  therefore,  there  was  no  repeal  by  implication. 
Sykes  v.  The  People,  127  111.  117;    Same  v.  Same,  132  111.  .32. 

Public  imrehousemen — Statutes  requiring  license  and  pre- 
scribing rates  of  storage,  constitutional. 

The  legislature  of  Illinois,  in  1871,  passed  an  act  entitled 
"An  act  to  regulate  ))ublic  warehouses  and  the  warehousing 
and  insjx'ction  of  grain,  and  to  give  effect  to  Article  13  of  the 
constitution  of  the  state."     Under  sections  3  and  4  of  this  act 


ILLINOIS.  233 

the  defendant  was  indicted  for  the  violation  thereof,  in  that 
he  conducted  a  pubhc  warehouse  in  the  city  of  Chicago  without 
first  having  procured  a  license  as  required  by  this  act.     The 
act  further  provided  a  maximum  charge  which  warehousemen 
doing  business  in  said  state,  should  be  allowed  to  make.     It 
appeared  that  the  defendant  had  been  doing  business  as  ware- 
houseman  for  a  long  period   prior  to  .the  enactment   of   said 
statute.    The  contention  was  made  in  his  behalf  that  the  act  was 
unconstitutional  and  void,  in  that  it  deprived  Iiiiii  of  property 
without  due  process  of  law.      The  court  held  that,  by  the  terms 
of  the  law  under  consideration,  no  right  of  property  was  taken 
away  or  destroyed.     That  all  the  property  the  owners  ever  had 
in  their  possession  remained  to  them  untouched  by  the  strong 
hand  of  the  legislature,  that  the  act  must  be  held  to  be  an 
honest  effort  on  the  part  of  the  legislature  to  arrest  a  great 
and  growing  evil  by  the  regulation  of  the  charges  which  ware- 
housemen could  demand,  and  placing  them  under  bond  that 
they  could  not  violate  its  provisions.     Munn  v.  Illinois,  69  111. 
80,  aff'd  94  U.  S.  113.     See  also  People  v.  Biidd,  117  N.  Y.  1, 
aff' d  143  U.  S.  517;  North  Dakota  ex  rel.  Stoeser  v.  Bras.%  2  N.  D. 
482,  aff'd  153  U.  S.  391  ;  People  v.  Miller,  82  N.  Y.  Supp.  582. 
See  State  v.  Associated  Press,  159  Mo.  410,  in  which  the  authori- 
ties are  fully   reviewed  and  the  doctrine  of   Mwin  v.  Illinois 
severely  criticiserl  and  departed  from ;  see  also  note  to  People 
V.  Budd,  in  New  York  decisions,  this  volume,  page  601. 


184  INDIANA    LAWS. 


CHAPTER  XIII. 
INDIANA. 

LAWS    PERTALMXG   TO   WAREHOUSEMEN. 

Classes  permit — Record  of  periuit  and  witlidrawal : 

Public  warehouses  shall  be  divided  into  two  classes,  to  be 
designated  as  classes  "A"  and  "B,"  respectively.  Any  })er- 
son  or  incorporated  company  desiring  to  keep  any  such  public 
warehouse  shall  be  entitled  to  do  so  u]:)on  receiving  a  permit 
therefor  from  the  auditor  of  the  county  in  which  such  warehouse 
shall  be  kept. 

Such  permit  shall  be  granted  upon  the  written  application, 
signed  by  the  owner  or  owners  of  such  warehouse,  if  natural 
persons,  or,  if  owned  by  a  corporation,  by  the  president  and 
secretary  thereof.  Every  warehouse  receiving  such  permit  shall 
continue,  subject  to  the  provisions  of  this  act,  until  the  owner 
or  owners  thereof  shall  file  in  said  auditor's  office  written  no- 
tice, signed  as  aforesaid,  that  they  desire  to  renounce  the  char- 
acter of  public  warehousemen;  and  such  auditor  shall  keep  a 
record  of  such  permit  and  renoimcement.  Warehousemen  not 
taking  out  such  permit  shall  not  be  in  any  wise  affected  by  the 
provisions  of  this  act.  Homer's  Annotated  Statutes,  1901, 
sec.  6525. 

What  classes  "  A  "  and  "  B  "  embrace  : 

Public  warehouses  of  class  "A"  shall  embrace  all  ware- 
houses, elevators,  or  granaries  in  which  grain  is  stored  in  bulk, 
and  in  which  the  grain  of  different  owners  is  mixed  together, 
or  in  which  grain  is  stored  in  such  a  manner  that  the  identity 
of  different  lots  or  parcels  cannot  be  accurately  preserved; 
public  warehouses  of  class  "B"  shall  embrace  all  other  -ware- 
houses or  places  where  property  of  any  kind  is  stored  for  a  con- 
sideration. Any  corporation,  company,  individual,  or  lessee, 
operating  or  conducting  a  public  warehouse,  shall  be  deemed  a 


INDIANA.  185 

public  warehouseman.  Wliere  a  peiniit  has  been  heretofore 
obtained,  or  may  hereafter  be  obtained  under  this  act,  to  keep 
a  pubhc  warehouse,  such  permit  shall  be  so  construed  as  to 
have  included  and  to  include  more  than  one  building  or  room, 
or  parts  of  buildings  or  places  of  storage  at  the  same  time: 
Provided,  That  such  places  were  or  are  all  in  the;  same  county 
in  which  the  permit  was  or  may  be  issued,  and  provided  that 
the  distinctions  between  the  classes  "A'"  and  "B,"  as  stated 
in  this  section,  have  been  or  shall  be  preserved  by  the  ware- 
houseman.    Id.  sec.  6526. 

Duty  of  class  "A" — Inspecting — Grading — Storing — Re- 
ceipt : 

It  shall  be  the  duty  of  every  warehouseman  of  class  "A"  to 
receive,  for  storage,  any  grain  that  may  be  tendered  to  him  in 
the  usual  manner  in  which  warehouses  are  accustomed  to  re- 
ceive the  same  in  the  ordinary  and  usual  course  of  business, 
not  making  any  discrimination  between  persons  desiring  to 
avail  themselves  of  warehouse  facilities.  Such  grain,  in  all 
cases,  shall  be  inspected  and  graded  by  a  duly  authorized  in- 
spector, and  stored  with  grain  of  a  similar  grade;  but  if  the 
owner  or  consignee  so  request,  and  the  warehouseman  consent 
thereto,  his  grain  may  be  kept  in  a  bin  by  itself,  apart  from 
that  of  other  owners,  which  bin  shall  thereupon  be  marked  and 
known  as  a  separate  bin.  If  a  warehouse  receipt  be  issued  for 
grain  so  kept  separate,  it  shall  state,  on  its  face,  that  it  is  in  a 
separate  bin.  Nothing  in  this  section  shall  be  so  construed 
as  to  require  the  receipt  of  grain  into  any  warehouse  in  which 
there  is  not  sufficient  room  to  accommodate  or  store  it  properly, 
or  in  case  where  such  warehouse  is  necessarily  closed.  Id. 
sec.  6527. 

Warehouse  receipt  for  class  "  A  "  : 

Upon  the  application  of  the  owner  or  consignee  of  grain 
stored  in  a  public  warehouse  of  class  "A"  (the  same  being  ac- 
companied with  evidence  that  all  transportation  or  other  charges 
which  may  be  a  lien  upon  such  grain,  including  charges  for  in- 
spection, have  been  paid),  the  warehouseman  shall  issue,  to 
the  person  entitled  thereto,  a  warehouse  receipt  therefor,  sub- 


186  INDIANA    LAWS. 

ject  to  the  order  of  the  owner  or  consignee;  which  receipt  shall 
bear  date  corresponding  with  the  receipt  of  the  grain  into  store, 
and  shall  state,  upon  its  face,  the  quantity  and  inspected  grade 
of  the  grain,  and  that  the  grain  mentioned  in  it  has  been  re- 
ceived into  store,  to  be  stored  with  grain  of  the  same  grade  by 
inspection,  and  that  it  is  deliverable  upon  the  return  of  the 
receipt,  properly  indorsed  by  the  person  to  whose  order  it  was 
issued,  and  the  payment  of  proper  charges  for  storage.  All 
warehouse  receipts  for  grain  issued  from  the  same  warehouse 
shall  be  consecutively  numbered,  and  no  two  receipts  bearing 
the  same  number  shall  be  issued  from  the  same  warehouse 
during  any  one  year,  except  in  the  case  of  a  lost  or  destroyed 
receipt,  in  which  case  the  new  receipt  shall  bear  the  same  date 
and  number  as  the  original,  and  shall  be  plainly  marked  on  its 
face  "Duplicate.''  Nothing  in  this  section  shall  be  so  con- 
strued as  to  require  any  warehouseman  or  warehouse  company 
to  issue  a  duplicate  or  substituted  receipt,  unless  sufficient  and 
satisfactory  evidence  of  the  loss  of  the  original  is  produced,  and 
unless  good  and  sufficient  security  and  indemnity  against  Ua- 
bility  on  the  original  receipt  shall  be  given.     Id.  sec.  6528. 

Receipt,  when  cancelled,  void  : 

Upon  delivery  of  grain  from  store  upon  any  receipt,  such 
receipt  shall  be  plainly  marked  across  its  face  with  the  word 
"Cancelled"  with  the  name  of  the  person  cancelling  the  same, 
and  it  shall  thereafter  be  void,  and  shall  not  again  be  put  in 
circulation,  nor  shall  grain  again  be  delivered  twice  upon  the 
same  receipt.     Id.  sec.  6529. 

Receipt  only  for  actual  delivery  : 

No  warehouse  receipt  shall  be  issued  except  upon  the  actual 
delivery  of  grain  into  store  in  the  warehouse  from  which  it  pur- 
ports to  be  issued,  and  which  is  to  be  represented  by  the  receipt, 
nor  shall  any  receipt  be  issued  for  a  greater  quantity  of  grain 
than  was  contained  in  the  lot  or  parcel  stated  to  have  been 
received,  nor  shall  more  than  one  receipt  be  issued  for  the  same 
lot  of  grain,  except  in  cases  wliere  receipts  for  parts  of  a  lot 
are  desired,  and  then  the  aggregate  receipts  for  a  particular  lot 
shall  cover  that  lot  and  no  more.     In  cases  where  a  part  of  the 


INDIANA.  187 

grain  represented  by  the  receipt  is  delivered  out  of  store  and 
the  remainder  is  left,  a  new  receipt  may  be  issued  for  such  re- 
mainder; but  such  new  receipts  shall  bear  the  same  date  as  the 
original,  and  shall  state,  on  its  face,  that  it  is  the  balance  of 
receipt  of  the  original  number;  and  the  receipt  upon  which  a 
l)art  has  been  delivered  shall  be  cancelled  in  the  same  manner 
as  if  it  all  had  been  delivered.  In  case  it  be  desirable  to  divide 
one  receipt  into  two  or  more,  or  in  case  it  be  desirable  to  con- 
solidate two  or  more  receipts  into  one,  and  the  warehouseman 
consents  thereto,  the  original  receipt  shall  be  cancelled  the  same 
as  if  the  grain  had  been  delivered  from  store;  the  new  receipts 
shall  express  on  their  face  that  they  are  parts  of  other  receipts, 
or  a  consolidation  of  other  receipts,  as  the  case  may  be;  and 
the  numbers  of  the  original  receipts  shall  also  appear  upon  the 
new  ones  issued,  as  explanatory  of  the  change.  All  new  re- 
ceipts issued  for  old  ones,  cancelled  as  herein  provided,  shall 
bear  the  same  date  as  those  originally  issued,  as  near  as  may  be. 
Id.  sec.  6530. 

Delivery  of  property : 

On  the  return  of  any  warehouse  receipt  issued  by  any  ware- 
houseman, properly  indorsed,  and  the  tender  of  all  proper 
charges  upon  the  property  represented  by  it,  such  property 
shall  be  immediately  deliverable  to  the  holder  of  such  receipt: 
Provided,  No  warehouseman  shall  be  held  in  default  in  deliv- 
ering, if  the  property  be  delivered  in  the  order  demanded,  or 
in  the  order  that  transportation  may  he  furnished,  and  as 
rapidly  as  due  diligence,  care,  and  prudence  will  justify.  Id. 
sec  6531. 

Responsibility  for  loss  or  damage : 

No  public  warehouseman  shall  be  held  responsible  for  any 
loss  or  damage  to  property  by  fire  while  in  his  custody,  provided 
reasonable  care  and  vigilance  be  exercised  to  protect  and  pre- 
serve  the  same;  nor  shall  he  be  held  liable  for  damage  to  grain 
by  heating,  if  it  can  be  shown  that  he  has  exercised  proper 
care  in  handling  and  storing  the  same,  and  that  such  heating 
or  damage  was  the  result  of  causes  beyond  his  control.  Id. 
sec.  6532. 


188  INDIANA    LAWS. 

Duty  as  to  grain  out  of  coiiditioii : 

In  case,  however,  any  warehouseman  of  class  "A"  shall  dis- 
cover that  any  portion  of  the  grain  in  his  warehouse  is  out  of 
condition,  or  becoming  so,  and  it  is  not  in  his  power  to  preserve 
the  same,  he  shall  immediately  give  public  notice  (by  posting 
a  notice  in  the  most  ])ublic  i)lace,  for  such  a  purpose,  in  the 
city  or  town  in  which  such  warehouse  may  be  located)  of  its 
actual  condition,  as  near  as  he  can  ascertain  it,  and  shall  state, 
in  such  notice,  the  kind  and  grade  of  grain,  the  bins  in  which 
it  is  stored,  the  receipts  outstanding,  upon  which  such  grain 
shall  be  delivered,  giving  the  numbers,  amounts  and  dates  of 
each  (which  receipts  shall  be  those  of  the  oldest  dates  then  in 
circulation  or  vmcancelled),  that  the  grain  represented  has  not 
been  previously  declared  or  receipted  for  as  out  of  condition; 
or  if  the  grain  longest  in  store  has  not  been  receipted  for,  he 
shall  so  state,  and  shall  give  the  name  of  the  party  for  whom 
such  grain  was  stored,  the  date  it  was  received,  and  the  amount 
of  it.  The  enumeration  of  receipts  and  identification  of  grain, 
so  discredited,  shall  embrace,  as  near  as  may  be,  as  great  a 
quantity  of  grain  as  is  contained  in  such  bins;  and  such  grain 
shall  be  delivered  upon  the  return  and  cancellation  of  the  re- 
ceipts, and  the  unreceipted  grain  upon  the  request  of  owner  or 
person  in  charge  thereof.     Id.  sec.  6533. 

Further  duty  as  to  such  grain — Sale  : 

Notliing  herein  contained  shall  be  held  to  relieve  the  said 
warehouseman  from  exercising  proper  care  and  vigilance  in 
preserving  such  grain  after  such  publication  of  its  condition; 
but  such  grain  shall  be  kept  separate  and  apart  from  all  direct 
contact  with  other  grain,  and  it  shall  not  be  mixed  with  any 
other  grain  while  in  store  in  such  warehouse.  Nothing  in  this 
section  shall  be  so  construed  as  to  permit  any  warehouseman 
to  deliver  any  grain  stored  in  a  separate  bin  or  by  itself,  as 
provided  in  this  act,  to  any  but  the  owner  of  the  lot,  whether 
the  same  be  represented  by  a  warehouse  receipt  or  otlierwise 
In  case  the  grain  declared  out  of  condition,  as  herein  provided 
for,  shall  not  be  removed  from  store  by  the  owner  thereof 
within  thirty  days  from  the  date  of  the  notice  of  its  being  out 
of  condition,  it  shall  be  lawful  for  the  warehouseman  with  whom 


INDIANA.  189 

the  grain  is  stored  to  sell  the  same  at  public  auction,  for  ac- 
count of  said  owner,  by  giving  ten  days'  iju])lic  notice  by  ad- 
vertisement in  a  newspaper  (daily,  if  there  be  such)  published 
in  the  city  or  town  where  such  warehouse  is  located.  Id. 
sec.  6534. 

Good  f  aitli  required  : 

It  shall  not  be  lawful  for  any  public  warehouseman  to  select 
different  qualities  of  the  same  grain  for  the  purpose  of  storing 
or  delivering  the  same,  nor  shall  he  attempt  to  deliver  grain 
of  one  grade  for  another,  or  in  any  way  tamper  with  grain, 
while  in  his  possession  or  custody,  with  a  view  of  securing 
profit  to  himself  or  any  other  person.  Nothing  in  this  section, 
however,  shall  prevent  any  warehouseman  from  moving  grain 
while  within  his  warehouse,  for  its  preservation  or  safe-keeping. 
Id.  sec.  6535. 

Owiiers  and  inspectors  may  examine  warehouse  : 

All  persons  owning  property,  or  who  may  be  interested  in 
the  same,  in  any  public  warehouse,  and  all  duly  authorized 
inspectors  of  such  property,  at  all  times  during  ordinary  busi- 
ness hours,  shall  be  at  full  liberty  to  examine  any  and  all  prop- 
erty stored  in  any  public  warehouse  in  this  state ;  and  all  proper 
facilities  shall  be  extended  to  such  persons  by  the  warehouse- 
man, his  agents  or  servants,  for  an  examination.  All  parts  of 
public  warehouses  shall  be  free  for  the  inspection  and  exam- 
ination of  any  person  interested  in  property  stored  therein, 
or  of  any  authorized  inspector  of  such  property.     Id.  sec.  6536. 

Keceipts  negotiable — Receipts  of  class  "  B  "  : 

Warehouse  receipts  for  property  stored  in  any  class  of  public 
warehouses,  as  herein  described,  shall  be  negotiable  and  trans- 
ferable by  the  indorsement  of  the  party  to  whom  such  receipt 
may  be  issued;  and  such  indorsement  shall  be  deemed  a  valid 
transfer  of  the  property  represented  by  such  receipt  and  may 
be  either  in  blank  or  to  the  order  of  another.  Every  indorsee 
or  transferee  of  such  receipt  may,  in  like  manner  and  with  like 
effect,  negotiate  and  transfer  the  same,  by  indorsement,  to  the 
order  of  another,  or  in  blank,  or  by  delivery  by  a  prior  indorse- 
ment in  blank,     Every  such  indorsement  shall  be  deemed  to 


190  INDIANA    LAWS. 

be  a  warranty  tliat  the  indorser  has  good  title  and  lawful  au- 
thority to  sell  the  property  named  in  such  receipt.  No  sale 
of  grain  in  store,  which  is  not  evidenced  or  accompanied  by  a 
transfer  of  the  warehouse  receipt  given  tluMcfor,  shall  be  valid 
as  against  the  bona  fide  holder  of  such  receipt.  All  warehouse 
receipts  for  property  stored  in  public  warehouses  of  class  ''B" 
shall  distinctly  stat^,  on  their  face,  the  brand  or  distinguishing 
mark  on  such  property.     Id.  sec.  6537. 

Frauduleiit  receipts,  or  removing  property,  felony  : 

Any  warehouseman  of  any  i)ublic  warehouse,  who  shall  be 
guilty  of  issuing  any  warehouse  receipt  for  any  j^roperty  not 
actually  in  store  at  the  time  of  issuing  such  receipt;  or  who 
shall  be  guilty  of  issuing  any  warehouse  receipt  in  any  respect 
fraudulent  in  character,  either  as  to  date,  or  as  to  the  quantity, 
quality  or  inspected  grade  of  such  property;  or  who  shall  re- 
move any  property  from  store,  except  to  preserve  it  from  fire 
or  other  sudden  damage,  without  the  return  and  cancellation 
of  any  and  all  outstanding  receipts  that  may  have  been  issued 
to  represent  such  property, — shall  be  deemed  guilty  of  a  crime, 
and,  upon  conviction  thereof,  shall  suffer,  in  addition  to  any 
other  penalties  prescribed  by  this  act,  imprisonment  in  the 
penitentiary  for  not  less  than  one  and  not  more  than  ten  years. 
Id.  sec.  6538. 

Appointment  of  grain  inspectors  : 

There  shall  be  appointed,  annually  by  the  board  of  trade 
or  other  commercial  organization,  one  or  more  inspectors  of 
grain  and  other  property,  for  the  county  where  such  board  is 
organized,  and  in  case  there  be  no  such  organization  in  any 
county,  then  the  judge  of  the  circuit  court  may  appoint  such 
inspectors.  Every  inspector,  before  entering  upon  the  duties 
of  his  office,  shall  take  an  oath  to  faithfully  and  honestly  per- 
form his  duty  according  to  law.  Where  there  are  two  or  more 
such  organizations  in  any  city,  the  one  whose  members  deal 
most  exclusively  with  grain  and  produce  shall  make  such  ap- 
pointment, and  it  shall  provide  for  his  compensation,  and  for 
that  purpose  may  fix  a  schedule  of  fees  to  be  paid  by  the  owners 
of  such  property  as  may  be  inspected.     Id.  sec.  6539. 


INDIANA.  191 

Duty  of  inspectors — Compensation  : 

Such  inspector  may  classify  and  determine  the  grade  to  which 
any  article  of  property  submitted  to  his  inspection  belongs; 
but  where  there  is  a  board  of  trade  or  other  commercial  or- 
ganization in  such  county,  it  shall  have  the  exclusive  authority 
to  fix  the  grade  of  property,  defining  what  shall  constitute 
grade  numbers  one,  two,  etc.,  the  inspector  determining  only 
as  to  what  grade  the  same  belongs.  Where  there  is  no  such 
organization  in  any  county,  then  the  grading  and  rates  of  com- 
pensation for  inspection  adopted  by  such  organization  in  the 
city  nearest  to  the  point  where  such  grain  or  property  is  in- 
spected, shall  govern  the  inspector  in  his  inspection.  Id.  sec. 
6540. 

Elevator  or  warehouse  receipts : 

That  all  persons,  firms  or  corporations  owning  and  dealing 
in  corn,  wheat,  oats,  rye,  barley,  or  other  grain  who  may  desire 
to  sell,  transfer,  assign,  pledge,  or  hypothecate  the  same,  or 
any  part  thereof,  by  issuing  elevator  or  warehouse  receipts  or 
certificates,  are  hereby  required  to  file  with  the  recorder  of 
deeds,  in  the  county  where  any  such  grain  is  stored,  a  written 
declaration  setting  forth  the  name  and  residence  of  such  per- 
son, firm  or  corporation  that  such  person,  firm  or  corporation 
desires  to  keep,  own  or  control  a  warehouse,  elevator,  crib  or 
other  place  for  the  storage  and  keeping  of  grain,  an  accurate 
description  of  the  place  and  locality  where  the  same  is  to  be 
kept,  owned,  or  controlled,  and  of  the  elevator,  warehouse, 
crib  or  other  place,  the  dimensions  and  quality  thereof,  and  the 
names  of  any  other  persons  than  the  one  making  the  declara- 
tion, having  any  interest  in  knd  or  structure;  such  declaration 
shall  be  duly  acknowledged  and  filed  for  record  in  the  same 
manner  as  instruments  for  the  conveyance  of  personal  property. 
Id.  sec.  6540a. 

May  pledge  grain— Certificate  sliowing  law  complied  with  : 

Any  person,  firm  or  corporation  owning,  keeping  or  con- 
trolling any  such  elevator,  warehouse,  crib,  or  other  place  for 
the  storage  of  grain,  and  who  has  filed  the  declaration  as  pro- 
vided in  section  one  hereof,  may  execute  and  issue  bills,  certifi- 


192  INDIANA    LAWS. 

cates  or  warehouse  receipts,  for  any  grain  that  may  actually 
be  in  said  elevator,  warehouse,  crib  or  other  place  described 
in  said  declaration,  or  for  any  jjart  or  (juantity  thereof,  and 
may  sell,  convey,  assign,  transfer,  pledge  or  incumber  said 
grain,  or  any  part  or  quantity  thereof.  But  such  bill,  certifi- 
cate or  warehouse  receipt  shall  have  written  or  printed  on  it  a 
statement  that  the  person,  firm  or  corporation  issuing  it  has 
complied  with  section  one  hereof,  with  the  book  and  page  in 
the  recorder's  office  where  the  same  is  recorded,  the  name  and 
address  of  the  party  issuing  it,  and  to  whom  issued,  the  location 
of  the  premises  and  elevator,  warehouse,  crib  or  other  place 
where  the  grain  is  stored,  the  date  of  issuance,  and  the  ciuantity 
of  grain  and  its  kind,  and  shall  be  signed  by  the  person,  firm 
or  corporation  issuing  it;  and  bills,  certificates  and  receipts 
issued  in  the  manner  and  form  aforesaid  shall  operate  and  have 
the  effect  to  transfer  the  title  to  the  grain  described  in  them, 
and  vest  the  same  in  the  holder  thereof,  and  the  holders  thereof 
may  sell,  assign,  transfer,  or  otherwise  dispose  of  the  same  in 
like  manner  without  the  purchaser,  assignee  or  holder  being 
required  to  have  the  same  recorded  or  give  notice  to  protect 
himself  against  existing  creditors  or  subsequent  purchasers,  as 
required  in  other  cases  where  property  is  left  in  the  possession 
of  the  vendor.     Id.  sec.  65406. 

Receipts  and  certificates : 

Every  person,  firm  or  corporation  making  the  declaration 
and  issuing  receipts  and  certificates  for  grain,  as  herein  con- 
templated, shall  keep  a  regular  well-bound  book,  wherein  shall 
be  kept  and  entered  at  the  date  of  issuance  thereof,  full  account 
of  each  and  every  receipt  or  certificate,  with  the  date  of  issu- 
ance, number,  name  of  person  to  whom  issued,  the  quality 
and  kind  of  grain  covered  by  such;  and  such  book  shall  be  sub- 
ject to  the  inspection  and  examination  of  each  and  every 
person  holding  any  such  receipt  or  certificate,  his  agent  or 
attorney. 

Any  person  wrongfully  altering,  changing,  or  willfully  destroy- 
ing any  such  book  shall,  upon  conviction,  be  fined  not  exceed- 
ing one  thousand  dollars,  and  may  be  imprisoned  in  the  county 
jail  not  exceeding  one  year;  and  any  person,  firm  or  corpora- 


INDIANA.  193 

tioii  issuing  any  ix'ccipt  or  certificate,  without  entering  and 
preserving  in  such  book  the  required  memoranda  shall  be  fined, 
upon  conviction,  not  to  exceed  one  hundred  dollars  for  each 
certificate  so  issued  and  be  liable  for  all  damages  sustained  in 
consequence  of  such  omission.     Id.  sec.  6540c. 

Penalty  for  issuing  false  certificate : 

Any  person,  firm  or  corporation  who  shall  knowingly  issue 
any  such  receipt  or  certificate  for  grain  when  the  grain  described 
is  not  actually  in  the  elevator,  warehouse,  crib  or  other  place 
mentioned  therein,  or  shall  knowingly,  with  intent  to  defraud, 
issue  a  second  receipt  or  certificate  for  grain,  for  which,  or  part 
of  which,  any  former  receipt  or  receipts,  certificate  or  certifi- 
cates, are  outstanding,  uncancelled,  and  valid  and  subsisting, 
shall,  beside  being  liable  for  all  damages  caused  by  such  second 
issue,  be  deemed  guilty  of  felony,  and  for  each  offense  be  fined 
not  to  exceed  one  thousand  dollars,  and  may  be  imprisoned  in 
the  penitentiary  not  exceeding  five  years.     Id.  sec.  6540(i. 

Penalty  for  removing  grain : 

Any  person,  firm  or  corporation  owning,  possessing  or  con- 
trolling any  elevator,  warehouse,  crib  or  other  place  for  storing 
grain  as  provitled  in  this  act,  who  shall  sell  or  remove,  or  know- 
ingly permit  to  be  removed  therefrom,  any  grain  for  which  any 
receipt  or  certificate  has  been  issued  and  is  outstanding,  held 
by  any  other  person  than  the  person  issuing  the  same,  and  any 
person  knowingly  receiving,  or  helping  to  remove  the  same, 
shall  be  deemed  guilty  of  grand  larceny  and  punished  as  pro- 
vided by  statute,  and  such  grain  so  removed  shall  be  deemed 
and  regarded  as  stolen  property  and  may  be  pursued  and  re- 
covered or  its  value  recovered  by  the  owner  and  holder  of  the 
said  receipt  or  certificate.     Id.  sec.  6540e. 

Who  are  warehousemen  : 

Every  person,  firm,  company,  or  corporation,  receiving  cot- 
ton, tobacco,  pork,  grain,  corn,  rye,  oats,  wheat,  hemp,  whiskey, 
coal,  any  kind  or  produce,  wares,  merchandise,  commodity,  or 
any  other  kind  or  description  of  personal  property  or  thing 
whatever  in  store,  or  undertaking  to  receive  or  take  care  of  the 
13 


194  INDIANA    LAWS. 

same,  with,  or  without  compensation  or  reward  therefor,  shall 
be  deemed  and  be  held  a  warehouseman.     Id.  sec.  6541. 

Receipt  for  property — Evidence  : 

Every  warehouseman,  receiving  anything  enumerated  in  the 
preceding  section,  shall,  on  demand  of  the  owner  thereof,  or 
the  ])erson  from  whom  he  received  the  same,  give  a  receipt 
therefor,  setting  forth  the  brand,  quality,  quantity,  kind  and 
tlescription  thereof,  which  shall  be  designated  by  some  mark; 
which  receipt  shall  be  evidence  in  any  action  against  said  ware- 
houseman.    /(/.  sec.  6542. 

Receipts  negotiable : 

All  receipts  issued  by  any  warehouseman,  an  provided  by 
this  act,  shall  be  negotiable  and  transferable  by  indorsement 
in  blank,  or  by  special  indorsement,  and  with  like  liability  as 
bills  of  exchange  now  are,  and  like  remedy  thereon.    Id.  sec.  6543. 

Receipts  given  only  for  property  stored  : 

No  w^arehouseman,  or  other  person,  shall  issue  any  receipt 
or  other  voucher  for  any  goods,  wares,  merchandise,  produce, 
or  thing  enumerated  in  section  one  of  this  act  (sec.  6541)  or 
for  any  other  commodity  or  thing,  to  any  person,  company, 
or  corporation,  unless  such  goods,  wares,  merchandise,  produce, 
property,  commodity,  or  thing  shall  have  been  bona  fide  received 
into  and  stored  by  such  warehouseman  or  other  person,  and  shall 
be  in  store  and  under  his  control,  care,  and  keeping,  at  the  time 
of  issuing  such  receipt.     Id.  sec.  6544. 

Fraudulent  receipts  forbidden : 

No  warehouseman  or  other  person  shall  issue  any  receipt  or 
voucher  for  any  goods,  wares,  merchandise,  produce,  commodity, 
property,  or  other  thing,  of  any  description  or  character  what- 
ever, to  any  person,  company,  or  corporation,  as  security  for 
any  money  loaned,  or  for  other  indebtedness  or  indemnity,  un- 
less such  goods,  wares,  merchandise,  produce,  conmiodity,  prop- 
erty, or  other  thing,  .so  receipted  for,  shall  be,  at  the  time  of 
issuing  such  receipt  or  voucher,  the  property,  without  incum- 
brance, of  said  warehouseman,  and  if  incumbered  by  proper 
lien,  then  the  character,  extent  and  amount  of  that  lien  shall 


INDIANA.  196 

be  fully  set  forth  and  explained  in  the  receipt,  and  shall  be 
actually  in  store  and  under  control  of  said  warehouseman  at 
the  time  of  giving  such  receipt  or  voucher.     Id.  sec.  6545. 

No  receipt  while  one  outstaiidins  : 

No  warehouseman  or  other  person  shall  issue  any  receipt  or 
other  voucher  for  any  goods,  wares,  merchandise,  produce,  or 
other  thing  enumerated  in  section  one  of  this  act  (sec.  6541), 
while  any  former  receipt  for  such  goods,  wares,  merchandise, 
produce,  or  thing  as  aforesaid,  or  any  part  thereof,  shall  be  out- 
standing and  uncancelled.     Id.  sec.  6546. 

Warehouse  receipts — Unlawful  issue : 

That  it  shall  be  unlawful  for  any  corporation,  firm  or  person, 
their  agents  or  employees,  to  issue,  sell,  pledge,  assign,  or  trans- 
fer in  this  state,  any  receipt,  certificate  or  other  written  in- 
strument purporting  to  be  a  warehouse  receipt,  or  in  the  simili- 
tude of  a  warehouse  receipt  or  designed  to  be  understood  as  a 
warehouse  receipt,  for  goods,  wares  or  merchandise  stored  or 
deposited,  or  claimed  to  be  stored  or  deposited,  in  any  ware- 
house, public  or  private,  or  any  other  state,  unless  such  re- 
ceipt, certificate  or  other  written  instrument  shall  have  been 
issued  by  the  warehouseman  operating  such  warehouse.  Id. 
sec.  6546a. 

False  receipts : 

It  shall  be  unlawful  for  any  corporation,  firm  or  person,  their 
agents  or  employees,  to  issue,  sell,  pledge,  assign  or  transfer 
in  this  state  any  receipt,  certificate  or  other  written  instrument 
for  goods,  wares  or  merchandise  claimed  to  be  stored  or  de- 
posited, in  any  warehouse,  public  or  private,  in  any  other  state, 
knowing  that  there  is  no  such  warehouse  located  ;it  the  place 
named  in  such  receipt,  certificate  or  other  written  instrument, 
or  if  there  be  a  warehouse  at  such  place,  knowing  that  there  are 
no  goods,  wares  or  merchandise  stored  or  deposited  therein  as 
specified  in  such  receipt,  certificate  or  other  written  instrument. 
Id.  sec.  65466. 

Description  must  he  definite  : 

It  shall  be  unlawful  for  any  corporation,  firm,  or  person,  their 


196  INDIANA    LAWS. 

agents  or  employees,  to  issue,  sign,  sell,  pledge,  assign  or  trans- 
fer, in  this  state,  any  receipt,  certificate  or  other  written  in- 
strument evidencing,  or  purporting  to  evidence,  the  sale,  pledge, 
mortgage  or  bailment  of  any  goods,  wares  or  merchandise  stored 
or  deposited,  or  claimed  to  be  stored  or  deposited,  in  any  ware- 
house, public  or  private,  in  any  other  state,  unless  such  re- 
ceipt, certificate  or  other  written  instrument  shall  plainly  desig- 
nate the  number  and  location  of  such  warehouse,  and  shall  also 
set  forth  therein  a  full,  true  and  complete  copy  of  the  receipt 
issued  by  the  warehouseman  operating  such  warehouse  wherein 
such  goods,  wares,  or  merchandise  are  stored  or  deposited,  or 
are  claimed  to  be  stored  or  deposited:  Provided,  That  the  pro- 
visions of  this  section  shall  not  api)ly  t(j  the  issue,  signing,  sale, 
pledge,  assignment  or  transfer  of  bona  fide  warehouse  receipt 
issued  by  the  warehouseman  operating  public  or  bonded  ware- 
houses in  other  states,  according  to  the  laws  of  the  state  wherein 
such  warehouses  may  be  located.     Id.  sec.  6546c. 

Penalty  : 

Every  corporation,  firm  or  person,  agent  or  employee,  who 
shall  knowingly  violate  any  of  the  provisions  of  this  act  shall 
be  deemed  gmlty  of  a  misdemeanor,  and  upon  conviction  thereof 
shall  be  fined  in  any  sum  not  less  than  fifty  nor  more  than  one 
thousand  dollars,  to  which  may  be  added  imprisonment  in  the 
county  jail  for  any  period  not  exceeding  one  year.     Id.  sec.  6546d. 

Not  to  sell  receipted  property  : 

No  warehouseman  or  other  person  shall  sell  or  incumber,  ship, 
transfer,  or  in  any  manner  remove  beyond  his  immediate  con- 
trol any  goods,  wares,  merchandise,  produce,  commodity,  prop- 
erty or  chattel  for  which  a  receipt  or  voucher  shall  have  been 
given,  without  the  written  consent  of  the  person  holding  and 
producing  such  receipt.     Id.  sec.  6547. 

Act  extends  to  ganger's  receipts  : 

The  provisions  of  this  act  shall  extend  to  ganger's  receipts 
issued  for  distilled  spirits  which  may  be  in  the  bonded  ware- 
houses of  the  distillers  in  the  state  of  Indiana  under  the  con- 
trol of  the  revenue  officers  of  the  United  States  or  under  any 


INDTAXA.  197 

law  of  the  United  States ;  and  such  receipts  shall  be  transferable 
by  indorsement  as  provided  in  section  three  of  this  act.  Id. 
sec.  6548. 

Penalty  for  cheating  or  swindling — Criminal  and  civil : 

Any  warehouseman  or  person  who  shall  willfully,  knowingly, 
and  purposely  violate  any  or  the  provisions  of  this  act  shall  be 
deemed  a  cheat  and  swindler,  and  subject  to  indictment  in  a 
court  of  competent  jurisdiction,  and,  upon  conviction,  shall  be 
fined  in  any  sum  not  exceeding  five  thousand  dollars,  and  shall 
be  imprisoned  in  the  state  prison  for  any  determinate  period 
not  exceeding  five  years.  Every  person  aggrieved  by  the  vio- 
lation of  any  of  the  provisions  of  this  act  shall  have  imd  main- 
tain an  action  against  the  person,  company,  or  corporation 
violating  the  same,  to  recover  all  damages,  immediate,  conse- 
quent, and  legal,  which  he  may  have  sustained  by  reason  of 
such  violation  as  aforesaid,  whether  such  person  may  have 
been  convicted  criminally  or  not.     Id.  sec.  6549. 

Receipt  as  collateral,  how  sold  : 

When  any  receipt  or  voucher  shall  have  been  issued,  as  pro- 
vided by  this  act,  and  used  or  pledged  as  collateral  security  for 
the  loan  of  money,  or  to  indemnify,  for  any  purpose,  the  bank, 
person,  or  corporation  to  whom  the  same  may  be  pledged, 
hypothecated,  or  transferred,  shall  have  power  and  authority 
to  sell  the  same  and  transfer  title  thereto,  in  such  manner  and 
on  such  terms  as  may  be  agreed  to  in  writing  by  the  parties  at 
the  time  of  making  the  pledge.     Id.  sec.  6550. 

Warehouses— Crimes  against — Burglary  : 

Whoever,  in  the  night-time,  breaks  and  enters  mto  any  dwell- 
ing house,  kitchen,  smoke-house,  out-house,  shop,  office,  store- 
house, ware-house,  mill,  distillery,  pottery,  factory,  barn  or 
stable,  school-house,  church,  meeting-house,  or  building  used 
for  the  purpose  of  religious  worship,  boat,  wharf-boat,  or  other 
water-craft,  car-factory,  freight-house,  station-house,  depot,  or 
railroad  car,  with  intent  to  commit  a  felony,  is  guilty  of  burg- 
lary and,  upon  conviction  thereof,  shall  be  imprisoned  in  the 
state  prison   not  more  than  fourteen  years  nor  less  than  two 


198  INDIANA    LAWS. 

years,  and  disfranchised  and  rendorod  incapable  of  holding  any 
office  of  trust  or  profit  for  any  deterniinate  period.  Id.  sec.  1929. 

Euteriiig  house,  etc.,  to  coininit  felony  : 

Whoever,  in  the  day-time  or  night-time,  enters  any  dwelhng- 
house,  kitchen,  smoke-house,  out-house,  shop,  office,  store- 
house, ware-house,  mill,  distillery,  pottery,  factory,  barn,  stable, 
school-house,  church,  meeting-house,  or  building  used  for  the 
purpose  of  religious  worship,  boat,  wharf-boat,  or  other  water- 
craft,  car-factory,  freight-house,  station-house,  depot,  or  rail- 
road car,  and  attempts  to  conmiit  a  felony,  shall  be  imprisoned 
in  the  state  prison  not  more  than  fourteen  years  nor  less  than 
two  years,  and  disfranchised  and  rendered  incapable  of  holding 
any  office  of  trust  or  profit  for  any  determinate  period.  Id. 
sec.  1930. 

House  bre.aking  in  day-time  to  steal : 

Whoever,  in  the  day-time,  breaks  and  enters  into  any  dwell- 
ing-house, kitchen,  smoke-house,  out-house,  shop,  office,  store- 
house, ware-house,  mill,  distillery,  pottery,  factory,  barn,  stable, 
school-house,  church,  meeting-house,  or  building  used  for  the 
purpose  of  religious  worship,  water-craft,  car-factory,  freight- 
house,  station-house,  depot,  or  railroad  car,  with  intent  to  com- 
mit the  crime  of  larceny,  shall  be  imprisoned  in  the  county  jail 
not  more  than  six  months  nor  less  than  ten  days,  and  fined  not 
exceeding  two  hundred  dollars.     Id.  sec.  1931. 


INDIANA.  199 


DECISIONS  AFFECTING  WAREHOUSEMEN. 

A. 

Bailment — What  constitutes,  contract  of. 

A  receipt  drawn  by  a  warehouseman  for  a  certain  quantity 
of  wheat  "received  in  store  subject  to  our  charges.  Fire  at 
owner's  risk"  constitutes  a  contract  of  bailment.  Drudge  v. 
Leiter  et  at.,  18  Ind.  App.  694. 

Same — Injury. 

In  an  ordinary  case  of  bailment,  uncontrolled  by  special 
stipulation,  and  in  the  absence  of  negligence  or  misconduct 
by  the  bailee,  an  injury  to  the  property  bailed  falls  on  the  bailor. 
Conwell  V.  Smith,  8  Ind.  530. 

Same — Destroyed  by  accident. 

Where  property  in  the  custody  of  a  bailee  is  destroyed  acci- 
dentally, without  any  fault  on  his  part,  the  bailee  is  not  liable. 
Drudge  v.  Leiter  et  al,  18  Ind.  App.  694. 

Bailment  and  sale. 

Where  it  appeared  from  the  evidence  that  wheat  which  had 
been  delivered  to  dealers  had  been  placed  in  railroad  cars  for 
shipment  and  not  stored  in  warehouse,  and  where  they  retain 
it  for  the  purpose  of  obtaining  a  better  price  therefor,  it  was 
held  that  this  constituted  a  sale  of  the  wheat  and  not  a  bail- 
ment, and,  in  event  of  destruction  by  fire,  the  dealers  were  liable 
for  the  unpaid  price  thereof.  Woodivard  et  al.  v.  Boone  et  al., 
126  Ind.  122. 

Sajne — Agreement  to  deliver  flour  and  bran  for  wheat  deposited. 

Defendants  were  dealers  in  grain,  conducting  a  warehouse 
and  flour  mill,  and  the  plaintiff  agreed  to  furnish  wheat  to  them, 
for  which  the  defendants  were  to  deliver,  on  request,  a  desig- 
nated number  of  pounds  of  flour  and  bran  for  each  bushel  of 
wheat  delivered.  The  flour  and  bran  were  to  remain  in  the 
possession  of  the  defendants  subject  to  delivery  on  demand  of 
the  plaintiff.     Before  the  delivery  of  all  of  the  flour  and  bran 


200  INDIANA    DECISIONS. 

to  the  plaintiff,  the  mill  and  warehouse  were  burned  without 
any  negligence  on  the  part  of  the  defendants.  Under  the  above 
facts,  it  was  held  that  it  was  essentially  a  contract  of  sale,  not 
a  bailment,  and  that  the  defendants  were,  therefore,  liable  for 
the  value  of  the  flour  and  bran  undelivered.  .  Woodivard  et  al. 
V.  Semans  et  al,  125  Ind.  330. 

Same — Commingling  of  grain. 

The  plaintiff  delivered,  to  the  defendant  warehouseman,  a 
large  quantity  of  grain  and  took  a  receipt  therefor  in  which  it 
was  stated  that  the  grain  had  been  received  to  be  stored  free  for 
tliirty  days,  after  which  time  there  would  be  a  certain  charge 
each  month  per  bushel.  The  receipt  further  stated  that  the 
defendants  agreed  to  pay  the  market  price  for  such  grain  at 
any  time  between  the  date  of  the  issuance  thereof  and  nearly 
a  year  thereafter,  and  that  the  grain  was  held  subject  to  owner's 
risk  of  loss  by  fire  or  heating.  The  evidence  also  showed  that 
the  defendants'  warehouse  and  most  of  the  contents  had  been 
destroyed  by  fire  without  any  fault  or  negligence  on  their  part. 
After  the  fire  the  defendants  had  some  grain  which  was  not 
destroyed  and  which  they  distributed,  pro  rata,  among  their 
depositors  to  all  those  who  would  accept,  the  plaintiffs  declin- 
ing to  do  so.  The  court  stated  as  conclusions  of  law,  first,  that 
the  title  to  the  grain  remained  in  the  plaintiffs  and  that  the 
defendants  were  liable  as  bailees;  second,  that  the  defendants 
were  not  liable  to  the  plaintiff  for  the  value  of  such  grain  nor 
for  damages  resulting  from  its  destruction;  third,  that  the  law 
is  with  the  defendants  and  that  the  plaintiff  should  take  nothing 
by  his  suit.  It  was  held  on  appeal  that  the  conclusions  of  law 
were  correct,  that  the  contract  was  one  of  bailment  and  not  of 
sale  and  therefore  the  judgment  given  for  the  defendant  was  af- 
firmed.    McGrew  v.  Thayer  et  at.,  24  Ind.  App.  578. 

B. 

Warehouseman — Manufacturing  company  cannot  act  as. 

A  corporation  organized  under  the  laws  for  the  incorporation 
of  manufacturing  and  mining  companies,  for  the  manufacture 
and  sale  of  nails  and  other  products  of  stool  and  iron,  is  not 
authorized  to  engage  in  the  business  of  a  public  or  private  ware- 


INDIANA.  201 

houseman,  or  to  issue  warehouse  receipts.     Franklin  Nat.  Bank 
et  al.  V.  Whitehead  et  at.,  149  Ind.  560. 

Same — Same — Statute  construed. 

A  manufacturing  corporation  not  empowered  to  do  the  busi- 
ness of  a  pubHc  warehouseman  cannot  Ijc  authorized  to  do  so 
by  the  county  au(Htor  upon  petition,  under  sec.  8704,  Burn's 
R.  S.  1894,  provi(Hng  that  any  person  or  incorporated  com- 
pany desiring  to  keep  a  pubHc  warehouse  shall  be  entitled  to 
do  so  upon  receiving  a  permit  therefor  from  the  county  auditor 
of  the  county  in  which  such  warehouse  shall  be  kept.     Id. 

Same — Same — Creditors  hound  to  know  powers  of  corporation. 

Creditors  of  a  corporation  organized  under  the  laws  for  the 
incorporation  of  manufacturing  and  mining  companies  are  bound 
to  know  that  such  corporation  has  no  power  to  carry  on  either 
a  public  or  private  warehouse  or  issue  warehouse  receipts.     Id. 

Same — Same — Contract  ultra  vires — Void  contracts. 

The  doctrine,  "  that  when  a  corporation  enters  into  a  contract 
merely  beyond  its  powers,  which  if  made  by  a  private  person 
would  have  been  binding  upon  him,  and  such  contract  has  been 
performed  by  the  other  party  thereto,  the  corporation  will  not 
be  permitted  to  deny  its  power  to  make  such  contract,"  does  not 
apply  to  contracts  that  are  forbidden  by  statute,  or  are  con- 
trary to  public  policy.     Id. 

Ordinary  care. 

Warehousemen  and  wharfingers  are  not  responsible  for  all 
goods  intrusted  to  their  care  and  not  lost  through  the  act  of 
God  or  public  enemy ;  but  are  only  responsible  for  ordinary  care 
and  diligence.  Cox  et  al  v.  0' Riley  and  Another,  4  Ind.  368; 
Cincinnati  &  Chicago  A.  L.  R.  R.  Co.  v.  McCool,  26  Ind.  140. 

Conversion — Demand  and  refusal. 

Where  the  bailor  demands  the  property  intrusted  to  his  bailee 
and  pays,  or  makes  a  valid  tender  to  pay,  the  storage  charges 
due  to  date,  if  the  warehouseman  refuse  to  deliver,  this  consti- 
tutes a  conversion.     Pribhle  v.  Kent,  10  Ind.  325. 


202  INDIANA    DECISIONS. 

Same — Action  for. 

Where  a  warehouseman  sold  wheat  on  deposit  and  appro- 
priated the  money  to  his  own  use,  an  action  against  such  ware- 
houseman, waiving  the  conversion  and  seeking  a  recovery  upon 
an  implied  contract,  must  be  for  the  price  received  for  the 
wheat,  and  not  for  the  value  of  the  converted  wheat.  Drudge 
V.  Leiter  et  ah,  18  Ind.  App.  694. 

Same — Plaintiff  must  be  owner  or  entitled  to  possession. 

A  person  cannot  maintain  an  action  for  conversion  where  he 
neither  owns  nor  is  entitled  to  possession  of  the  property  alleged 
to  have  been  converted.     Baker  v.  Brown,  17  Ind.  App.  422. 

Same — Pleadings — Sufficiency  of  complaint. 

In  an  action  against  a  warehouseman  for  the  conversion  of 
certain  corn  deposited  with  him,  the  complaint  should  allege 
that  prior  to  the  commencement  of  the  action  defendant  did 
not  have  a  sufficient  quantity  of  corn  of  the  kind  and  quality 
deposited  with  him  with  which  to  meet  the  demand  by  plain- 
tiff; that  a  demand  was  made;  that  storage  charges  or  expenses 
were  tendered,  or  that  storage  charges  had  not  attached.  Ba- 
ker V.  Born,  17  Ind.  App.  422. 

Same — Same. 

An  allegation  in  a  complaint  in  an  action  against  a  ware- 
houseman for  conversion  of  a  quantity  of  corn  deposited  with 
him,  that  on  and  before  a  specified  date  defendant  had  no  corn 
in  his  w^arehouse  or  under  his  control,  of  the  quality  of  the 
plaintiff's  corn  deposited  prior  to  a  specified  earlier  date,  but 
had  sold  such  corn,  is  not  equivalent  to  an  allegation  that  on 
a  certain  day  the  defendant  did  not  have  in  his  warehouse 
sufficient  corn  of  the  kind  and  quality  deposited  by  plaintiff.     Id. 

H. 

Sale  for  storage  charges  without  notice — Conversion. 

Sale  for  storage  charges  without  notice  to  the  owner  con- 
stitutes a  conversion  of  the  property.  Jordan  v.  Shireman,  28 
Ind.  136. 


INDIANA.  203 

Lien  for  charges. 

The  bailor  of  goods,  deposited  in  a  warehouse,  retains  the 
property  in  the  goods,  and  the  warehouseman  has  a  Hen  thereon 
for  his  oliarges.     Pribhle  v.  Kent  and  Another,  10  Ind.  825. 

I, 

Commingling  of  grain — Tenants  in  common — Destruction  by 
fire — Liability  of  warehousemmn. 

Owners  of  wheat  deposited  with  a  warehouseman  engaged 
in  receiving  grain  in  store  and  mingUng  same  in  common  re- 
ceptacle and  selling  and  shipping  the  grain  so  stored,  are  owners 
as  tenants  in  common  of  the  entire  quantity  of  the  grain  so 
commingled,  and  a  depositor  of  grain  who  has  so  deposited  a 
certain  quantity  is  an  ow^ner  of  an  undivided  portion  of  the 
whole  amount,  not  only  while  his  grain  is  actually  present  in 
the  common  store,  but  his  title  as  tenant  in  common  will  con- 
tinue as  long  as  any  grain  so  deposited  by  any  of  the  depositors 
remains  in  store,  unless  withdrawn  or  transferred  by  him.  If 
at  any  time  the  whole  mass  is  less  than  the  aggregate  deposits, 
then  each  depositor  owns  such  proportion  of  the  grain  in  store 
as  his  deposit  bears  to  the  aggregate  of  all  the  deposits;  and  if 
the  warehouse  and  contents  be  destroyed  by  fire,  without  fault 
of  the  warehouseman,  at  a  time  when  there  is  not  a  sufficient 
amount  of  grain  in  the  warehouse  to  satisfy  the  demands  of  all 
depositors,  by  reason  of  sales  made  thereof  by  the  warehouse- 
man, a  depositor  can  recover  for  the  value  of  the  grain  deposited 
by  him,  less  his  proportionate  share  of  the  aggregate  amount 
on  deposit  at  the  time  of  the  fire.  Drudge  v.  Leiter  et  al.,  18 
Ind.  App.  694:]  Rice  et  al.  v.  Nixon,  97  Ind.  97 ;  Schindler  et  al.  v. 
Westover  et  al,  99  Ind.  396. 

Same — Sale — Innocent  purchaser  protected. 

Where  grain  is  mixed  in  a  common  mass  in  a  warehouse,  with 
grain  belonging  to  the  owner  of  the  warehouse  and  the  ware- 
houseman is  regularly  selling  grain  to  purchasers  from  such 
common  mass,  such  depositor  cannot  set  up  his  title  to  the 
grain  against  that  of  an  innocent  purchaser.  Preston  et  al.  v. 
Witherspoon  et  al,  109  Ind.  457. 


204  INDIANA   DECISIONS. 

M. 

Pledge — Receipts  of  private  warehouseman  against  his  own  goods 
— Creditors  protected — Bankruptcy. 

Dealers  in  apples  and  other  produce  issued  a  receipt  repre- 
senting their  own  property  stored  in  their  own  warehouse  and 
pledged  the  same  to  secure  the  payment  of  a  loan.  Subse- 
quently, they  were  adjudged  bankrupts,  and  the  assignee  took 
jjossession  of  and  sold  all  of  their  })roperty,  including  the  apples 
represented  by  the  })ledged  receipt.  The  pledgee,  a  national 
bank,  brought  action,  asking  that  a  lien,  on  the  fund  arising 
from  the  sale  of  the  apples,  be  declared  in  its  favor.  It  ap- 
peared from  the  evidence  that  the  defendants  had  never  been 
engaged  legally  in  the  business  of  warehousemen,  and,  on  ap- 
peal, it  was  held  that  the  receipt  which  the  bank  held  was  not 
a  warehouse  receipt  within  the  meaning  of  the  statute,  and  that 
the  bank  must  stand  as  a  common,  instead  of  a  preferred,  cred- 
itor of  the  bankrupts.  Adams  v.  Merchants'  National  Bank  of 
Indianapolis,  2  Fed.  Rep.  174. 

N. 

Cold  storage — Injury  by  deleterious  odors — Contract  to  keep  the 
goods  therein — Breach  of. 

The  defendant,  a  warehouseman,  was  sued  by  the  plaintiff 
for  damage  to  a  large  quantity  of  butter  which  was  stored  with 
the  former  in  the  cold  storage  rooms  in  his  warehouse.  The 
complaint  alleged  that  owing  to  the  fact  that  the  butter  had 
become  impregnated  with  deleterious  odors  and  flavoi-s,  that 
it  was  greatly  diminished  in  value.  It  being  shown  on  the  trial 
that  the  butter  had  been  so  injured,  judgment  was  given  for  the 
plaintiff.  Holt  Ice  &  C.  S.  Co.  v.  Arthur  Jordan  Co.,  25  Ind. 
App.  314. 

Loss  by  accident — Negligence  must  be  shown. 

Where  goods  intrusted  to  a  warehouseman  are  accidentally 
destroyed,  there  being  no  negligence  shown  on  his  part,  he  is 
not  liable  for  their  loss.     Drudge  v.  Leiter  et  al.,  18  Ind.  App.  694. 


Evidence — Burden  of  proof — Prima  facie  case — Negligence. 
In  an  action  against  a  warehouseman  for  the  loss  of  butter 


INDIANA.  205 

stored  with  him  in  his  cold  storage  department,  the  court  in- 
structed the  jury,  in  effect,  that  the  general  rule  was  that  the 
burden  of  proof  was  on  the  plaintiff  to  prove  negligence,  but 
that  when  the  bailor  had  proved  delivery  to  the  warehouseman 
and  the  return  of  the  butter  in  a  damaged  condition,  that  the 
plaintiff  had  made  out  a  prima  facie  case  and  that  the  burden 
then  shifted  to  the  warehouseman  to  account  for  tlie  injury 
in  some  manner  consistent  with  the  exercise  of  ordinary  care 
on  his  part.  It  was  held  that  this  instruction  was  substan- 
tially correct  and  the  case  was  affirmed  on  appeal,  the  court 
observing,  however,  that,  strictly  speaking,  there  was  no  shift- 
ing of  the  burden  of  proof  and  that  it  remained  upon  the 
plaintiff"  throughout.  That  it  might  be  true  that  the  burden 
of  the  proceeding  did  shift;  that  when  the  bailor  luul  shown  a 
delivery  in  good  condition  and  a  failure  to  deliver  on  demand 
or  a  delivery  in  a  damaged  condition,  the  onus  was  upon  the 
defendant  to  prove  that  the  injury  was  caused  without  his 
fault,  the  plaintiff  having  made  out  a  prima  facie  case  against 
the  w^arehouseman.  Holt  Ice  &  C.  S.  Co.  v.  Arthur  Jordan  Co., 
25  Ind.  App.  314. 

Same — Best  evidence  to  prove  condition  of  eggs. 

The  best  evidence  to  prove  the  condition  of  eggs  alleged  to 
have  been  injured  while  in  cold  storage  is  the  testimony  of  the 
candler  who  examined  them.  An  unsigned  memorandum  made 
at  the  time  by  another  person  and  transcribed  by  a  bookkeeper 
in  the  employ  of  the  plaintif!'  does  not  constitute  the  best  evi- 
dence as  to  the  condition  of  the  eggs.     Adams  et  al.  v.  Sullivan, 

100  Ind.  8. 

0. 

Measure  of  damages — Value  on  date  of  demand. 

Where  the  owner  of  goods  stored  with  a  warehouseman  de- 
mands their  return  after  paying  charges  and  is  met  with  a  re- 
fusal, the  measure  of  damages  is  their  value  at  the  time  of 
demand  and  refusal.  Prihhle  v.  Kent,  10  Ind.  325;  Stevens  v. 
Low,  2  Hill,  132. 

Same — Place  of  injury — Average  price. 

In  an  action  for  the  recovery  of  the  value  of  eggs  injured  while 


206  INDIANA    DECISIONS. 

being  in  cold  storage,  the  court  instructed  the  jury  as  follows: 
"The  plaintiff  is,  however,  entitled  to  recover  the  highest  market 
jjrice  he  could  have  obtained,  at  the  time  of  the  injury,  for  the 
goods,  had  the  defendants  fully  jjerformed  their  duty  and  prop- 
erly preserved  the  goods  during  the  time  they  were  bound 
under  their  contract  to  keep  them  in  storage."  It  was  held 
that,  in  spite  of  the  obscurity  of  the  phraseology  of  this  instruc- 
tion, it  was  erroneous,  in  so  far  as  it  stated  to  the  jury  that,  in 
event  of  a  finding  for  the  i^laintiff,  the  eggs  should  have  been 
estimated  at  the  highest  market  value  which  the  plaintiff  could 
have  obtained  for  them,  Avhether  by  shipment  or  otherwise,  at 
the  time  they  were  injured.  The  jury  ought  to  have  been  told 
that,  in  assessing  the  damages,  the  eggs  should  have  been  esti- 
mated according  to  the  market  value  in  the  place  where  they 
were  injured;  further,  where  the  market  is  fluctuating  and  the 
prices  at  the  time  of  injury  were  indefinite,  the  average  range 
of  price  about  the  time  affords  the  proper  standard  of  the 
market  value.     Adams  et  at.  v.  Sullivan,  100  Ind.  8. 

P. 

Insurable  interest — Grain  commingled. 

It  appeared  that  the  plaintiffs,  commission  merchants,  en- 
gaged in  buying  and  selling  grain,  in  connection  with  their  busi- 
ness owned  and  conducted  a  grain  elevator  in  the  usual  manner. 
Those  who  took  receipts  from  the  plaintiffs  knew  that  their 
grain  could  never  be  distinguished  from  the  mass  with  which 
it  was  mmgled.  The  plaintiffs  insured  in  their  own  name,  with 
the  defendant,  the  grain  stored  to  the  full  value  thereof.  In 
an  action  for  the  recovery  of  the  amount  of  the  policy,  it  was 
held  that  the  plaintiffs  had  an  insurable  interest  therein  and 
that  the  defendant  was  liable  to  them  for  the  amount  of  the 
loss.     Baxter  v.  Hartford  Fire  Ins.  Co.,  12  Fed.  Rep.  481. 

Warehouse  receipt — Representations . 

Warehouse  receipts  represent  as  true,  two  very  essential 
things:  That  the  warehouseman  received  the  property  men- 
tioned in  the  receipts,  as  warehouseman,  and  that  it  will  be 
delivered  only  on  the  return  of  the  certificate,  properly  indorsed. 


INDIANA.  207 

If  the  warehouseman  allows  the  goods,  represented  by  the  re- 
ceipts, to  be  withdrawn  without  the  knowledge  of  the  person, 
who  had  relied  upon  the  representations  in  the  receipts,  he  must 
bear  the  loss.  Babcock  ei  al.  x.  Peoplefi'  Savings  Bank,  118 
Ind.  212. 

*S'a  m  e — Co  nlrad . 

A  warehouse  receipt  is  a  contract  of  bailment  and  parol  evi- 
dence is  not  receivable  to  vary  its  terms.  Toner  et  al.  v.  Citi- 
zens' State  National  Bank,  25  Ind.  App.  29. 

Same — General  rule — A   contract — Parol  evidence — Custom. 

As  a  general  rule,  a  warehouse  receipt  is  not  a  contract  and 
parol  evidence  may  be  admitted  touching  its  subject-matter, 
while  the  rule  in  regard  to  contracts  generally  is  that  such  evi- 
dence is  not  admissible.  A  receipt,  however,  may  be  so  drawn 
as  to  constitute  a  contract,  and  in  the  interpretations  or  con- 
structions of  a  contract  established  customs  may  be  considered. 
Pribble  v.  Kent,  10  Ind.  325. 

Same — Construction — Commercial  usage. 

A  receipt  given  by  a  warehouseman  for  wheat  received  may 
be  construed  by  adopting  the  meaning  of  its  own  terms  as  ex- 
plained by  commercial  usage.  Drudge  v.  Leiter  et  al.,  18  Ind. 
App.  694. 

Same — Mining  and  manufacturing  company  cannot  issue. 

A  corporation  organized  under  the  mining  and  manufactur- 
ing laws  is  not  authorized  to  engage  in  the  warehouse  business 
or  to  issue  warehouse  receipts.  Franklin  National  Bank  et  al. 
V.  Whitehead  et  al,  149  Ind.  560. 

Same — Issued  to  secure  warehouseman's  own  debt — Knowledge 
— Public  and  private  warehouseman. 

A  public  warehouseman  has  no  power  to  issue  warehouse  re- 
ceipts upon  his  own  property  in  his  possession,  and  deliver 
the  same  as  a  pledge  to  secure  an  indebtedness.  And  parties 
dealing  with  a  public  warehouseman  are  held  to  know  that  he 
has  no  such  power.     If  a  private  warehouseman  has  such  power 


208  INDIANA    DECISIONS. 

it  is  by  virtue  of  section  8724,  Burir.s  R.  S.  1894.     National  Bank 
et  al.  V.  Whitehead  et  al.,  149  Ind.  560. 

Same — Same — Not  a  warehouse  receipt. 

Where  a  debtor  who  is  not  a  warehouseman  issues  a  receipt 
puri)orting  to  be  a  warehouse  receipt,  on  property  in  his  pos- 
session and  owned  by  him,  for  the  sole  purpose  of  securing  a 
creditor,  the  same  is  not  in  any  sense  a  warehouse  receipt.     Id. 

Same — Negotiability — Private  warehouseman. 

Receipts  issued  by  a  private  warehouseman  against  his  own 
property  are  not  warehouse  receipts  within  the  meaning  of 
the  act  of  March  9,  1875.  Adams  v.  Merchants'  National 
Bank,  2  Fed.  Rep.  174. 

Same — As  coUatercd  security — Without  indorsement — Pledgee 
takes  subject  to  equities. 

The  plaintiff  took  a  warehouse  receipt  issued  by  the  defend- 
ant warehouseman  as  security  for  the  payment  of  indebtedness 
due  the  warehouseman  from  the  person  to  whom  the  receipt 
was  issued.  The  receipt  was  not  indorsed  to  the  plaintiff  but 
was  simply  delivered  to  him.  Default  being  made  in  the  pay- 
ment of  the  indebtedness,  the  plaintiff  instituted  an  action 
against  the  warehouseman  for  the  recovery  of  the  property 
represented  by  the  receipt.  The  person  to  whom  the  receipt 
was  issued  was  made  a  party  defendant  to  the  suit  and  he  de- 
faulted. The  defendant  warehouseman  offered  evidence  to 
show  that  the  person  to  whom  the  receipt  was  issued  was  in- 
debted to  him  and  in  his  motion  for  a  new  trial  claimed  that 
the  damages  were  excessive  and  that  he  should  have  been  given 
credit  for  this  sum.  It  was  held  on  appeal  that  this  was  cor- 
rect, that  the  plaintiff  had  taken  the  recei))t  without  indorse- 
ment and  that  therefore  the  claim  of  the  defendant  warehouse- 
man against  the  person  to  whom  the  receij:)!  was  issued  was 
valid.  The  case  was  therefore  reversed  and  remanded.  Toner 
et  al.  V.  Citizens'  State  National  Bank,  25  Ind.  App.  29. 

Same — Delivery  of  (foods  without  surrender  of  receipt — Ware- 
houseman  liable — Bona  fide  holder  protected. 
The  plaintiff,  in  good  faith,  loaned  to  a  commission  merchant 


INDIANA,  209 

$4,000,  and  accepted  as  security  therefor  a  warehouse  receipt 
issued  by  the  defendant  to  the  commission  merchant,  in  which 
it  was  stated  that  the  flour  rei)reseutod  by  the  recei[)t  was  de- 
hverable  only  upon  the  return  thereof,  properly  indorsed,  and 
on  payment  of  charges  and  insurtuice.  Subsequently,  and  with- 
out plaintiff's  knowledge,  defendant  allowed  the  commission 
merchant  to  remove  the  flour  represented  by  the  receipt.  The 
court  held  that  this  constituted  a  conversion  for  which  the  de- 
fendant was  liable  to  the  plaintiff.  Babcock  et  at.  v.  Peoples' 
Savings  Bank,  118  Ind.  212. 

R. 

Bill  of  lading — Parol  evidence. 

A  bill  of  lading,  in  so  far  as  it  is  a  receipt,  may  be  explained, 
.varied  or  even  contradicted  by  parol  evidence;  but  as  a  con- 
tract, expressing  the  terms  and  conditions  upon  which  the 
property  is  to  be  transported,  it  is  to  be  regarded  as  merging 
all  prior  and  contemporaneous  agreements  of  the  parties,  and, 
in  the  absence  of  fraud,  concealment  or  mistake,  its  terms  or 
legal  import,  when  free  from  ambiguity,  cannot  be  explained 
or  added  to  by  parol.  Louisville,  E.  &  St.  L.  R.  R.  Co.  v.  Wilson 
et  al,  119  Ind.  352;  Indianapolis  &  C.  R.  R.  Co.  v.  Remmy,  13 
Ind.  518;  Snow  v.  Indiana,  etc.,  R.  W.  Co.,  109  Ind.  422. 
14 


210  INDIAN    TERRITORY    LAWS. 


CHAPTER  XIV. 
INDIAN  TERRITORY. 

LAWS    PERTAINING    TO    WAREHOUSEMEN. 

If  any  carrier  or  other  bailee  sliall  embezzle,  or  convert  to  his 
own  use,  or  make  way  with  or  secrete  with  intent  to  embezzle, 
or  convert  to  his  own  use,  any  money,  goods,  rights  in  action, 
property,  effects  or  valuable  security,  which  shall  have  come  to 
his  possession,  or  have  been  delivered  to  him,  or  ])laced  under 
his  care  or  custody,  such  bailee,  although  he  shall  not  break 
any  trunk,  package,  box  of  other  thing  in  which  he  received 
them,  shall  be  deemed  guilty  of  larceny,  and  on  conviction 
shall  be  punished  as  in  cases  of  larceny.     An.  Stat.  1899,  sec.983. 


Note.     It  seems  that  there  are  in  Indian  Territory  no  decisions  affecting 
warehousemen. 


lOTVA.  211 


CHAPTER  XV. 
IOWA. 

LAWS  PERTAINING  TO   WAREHOUSEMEN. 

Elevator  or  warehouse  certificates : 

All  persons,  firms  or  corporations  engaged  in  owning  or  deal- 
ing in  grains,  seeds  or  other  farm  products;  the  slaughtering  of 
cattle,  sheep  and  hogs,  and  dealing  in  the  various  products 
therefrom  ;  the  buying  or  selling  of  butter,  eggs,  cheese,  dressed 
poultry  or  other  commodities ;  who  own  or  control  the  buildings 
wherein  any  such  business  is  conducted,  or  such  conmio(Uties 
stored,  may  issue  elevator  or  warehouse  certificates  for  any  of 
such  commodities  actually  on  hand  and  in  store,  the  property  of 
the  person,  firm  or  corporation  issuing  such  certificates  and  may 
by  such  method  sell,  assign,  transfer,  pledge  or  incumber  such 
commodity  to  the  amount  described  in  such  certificate.  Such 
certificates  shall  contain  the  name  and  address  of  the  person, 
firm  or  corporation  issuing  them,  and  the  name  and  address  of 
the  party  to  whom  issued,  the  location  of  the  elevator,  ware- 
house, building  or  other  place  where  the  commodity  therein 
described  is  stored,  the  date  of  the  issuance  of  such  certificate, 
the  quantity  of  each  commodity  therein  mentioned,  the  brands 
or  marks  of  identification  thereon,  if  any,  and  be  signed  by  the 
person  or  firm  issuing  the  same,  unless  issued  by  a  corporation, 
in  which  case  they  shall  be  signed  by  such  corporation  by  its 
secretary  or  business  manager  if  it  has  such  manager  other  than 
its  secretary.     Code  of  la.  1897,  sec.  3122. 

Declaration  : 

Before  any  such  person,  firm  or  corporation  is  authorized  to 
issue  such  elevator  or  warehouse  certificates,  he  or  it  must  file 
in  the  office  of  the  recorder  of  deeds,  in  the  county  where  any 
such  elevator,  warehouse  or  other  building  is  situated,  a  written 
declaration,  giving  the  name  and  place  of  residence  or  location 


212  IOWA    LAWS. 

of  such  person,  firm  or  corporation,  that  he  or  it  designs  keeping 
or  controlling  an  elevator,  warehouse,  crib  or  other  place  for 
the  sale  antl  storage  of  connnoclities  mentioned  in  the  preceding 
section,  an  accurate  description  of  the  elevator,  warehouse, 
crib  or  other  building  to  be  kept  or  controlled  and  where  the 
same  is  or  is  to  be  located,  the  name  or  names  of  any  person, 
other  than  the  one  making  such  declarations,  who  has  any  in- 
terest in  such  elevator,  warehouse  or  other  building,  or  in  the 
land  (HI  which  it  is  situated,  such  declaration  to  be  signed  and 
acknowledged  by  the  party  making  the  same  before  some  officer 
authorized  to  take  acknowledgments  of  instruments,  and  re- 
corded in  the  chattel  mortgage  record,  the  party  making  such 
declaration,  to  be  treated  as  the  vendor  in  indexing  such  dec- 
laration, and  the  public  as  vendee.     Id.  sec.  3123. 

Effect  of  certificate — Assignment : 

Each  certificate  issued  by  any  person,  firm  or  corporation 
shall  have  printed  on  the  back  thereof  a  statement  that  the 
party  issuing  it  has  complied  with  the  requirements  of  the  pre- 
ceding section,  giving  the  book,  page  and  name  of  the  county 
where  the  record  of  such  declaration  may  be  found;  and,  when 
such  certificate  is  so  issued  and  delivered,  it  shall  have  the  effect 
of  transferring  to  the  holder  thereof  the  title  to  the  commodities 
therein  described  or  enumerated,  and  shall  be  assignable  by 
written  indorsement  thereon,  signed  by  the  lawful  holder  there- 
of, which  shall  transfer  the  title  of  commodities  therein  enumer- 
ated, and  be  presumptive  evidence  of  ownership  in  such  holder. 
No  record  or  other  notice  shall  be  necessary  to  protect  the  rights 
of  the  holder  of  the  certificate  as  against  subsequent  purchasers 
of  the  property.     Id.  sec.  3124. 

Registration  of  certificates  and  transfers  : 

All  certificates  given  under  the  provisions  of  this  chapter 
shall  be  registered  by  the  party  issuing  them  in  a  book  kept 
for  that  purpose,  showing  the  date  thereof,  the  number  of  each, 
the  name  of  the  party  to  whom  issued,  the  quantities  and  kinds 
of  commodities  enumerated  therein,  and  the  brands  or  other 
distinguishing  marks  thereon,  if  any,  which  book  shall  be  open 
to  the  inspection  of  any  person  holding  any  of  the  certificates 


IOWA.  213 

that  may  be  outstan(lin<,^  and  in  forco,  or  liis  agent  or  attorney; 
and  when  any  conunodity  onuineratcd  in  any  such  certificate 
is  delivered  to  the  h()ld(M-  thereof,  or  it  in  any  other  manner  be- 
comes inoperative,  tlie  fact  and  date  of  such  deUvery  or  othc.T 
termination  of  such  hability  shall  be  entered  in  such  n'gister 
in  connection  with  the  original  entry  of  the  issuaru^e  tliereof. 
Id.  sec.  3125. 

Property  subject  to  certificate : 

No  person,  firm  or  corporation  shall  issue  any  elevator  or 
warehouse  certificate  for  any  of  the  commodities  enumerated 
in  this  chapter  unless  such  property  is  actually  in  the  elevator 
or  warehouse  or  other  building  mentioned  therein  as  being  the 
place  where  such  commodity  is  stored,  and  it  shall  remain  there 
until  otherwise  ordered  by  the  lawful  holder  of  such  certificate, 
subject  to  the  conditions  of  the  contract  between  the  ware- 
houseman and  the  person  to  whom  such  certificate  was  issued, 
or  his  assignee,  as  to  the  time  of  its  remaining  in  store ;  and  no 
second  certificate  shall  be  issued  for  the  same  property  or  any 
part  thereof  while  the  first  is  outstanding  and  in  force,  nor 
shall  any  such  commodities  be  by  the  warehouseman  sold,  in- 
cumbered, shipped,  transferred  or  removed  from  the  elevator, 
warehouse  or  other  building  where  the  same  was  stored  at  the 
time  such  certificate  was  issued,  without  the  written  consent 
of  the  holder  thereof.     Id.  sec.  3126. 

Section  2171  of  the  Code  of  1873  (containing  provisions 
similar  to  above)  construed : 

A  warehouse  receipt  issued  to  the  proprietor  of  the  ware- 
house against  his  own  goods  solely  for  the  purpose  of  using 
the  same  as  collateral  security,  held  invalid  within  the  meaning 
of  section  2171  of  the  Code  which  contains  provisions  similar 
to  the  above.     Sexton  &  Abbott  v.  Graham  et  al.,  53  la.  181. 

Damages : 

Any  one  injured  by  the  violation  of  any  of  the  provisions  of 
this  chapter  may  recover  his  actual  damages  sustained  on  ac- 
count thereof,  and  if  willfully  done,  in  addition  thereto,  exem- 
plary damages  in  any  sum  not  exceeding  double  the  actual  dam- 


214  IOWA    LAWS. 

ages,  which  actual  damages  shall  be  found  and  returned  by 
special  verdict.     Id.  sec.  3127. 

Section  2175  of  the  Code  of  1873  (eontaiiiiiig  provisions 
similar  to  above)  construed  : 

In  order  to  hold  a  warehouseman  liable  for  exemplary  dam- 
ages under  the  above  section,  it  must  be  shown  tluit  he  was 
guilty  of  a  willful  departure  from  his  duties  as  a  wai'elujuseman 
and  a  mere  failure  to  observe  all  the  legal  requirements  in  at- 
tempting to  enforce  his  right  of  sale  is  not  sufficient.  Jeffries 
V.  Snyder,  110  la.  359. 

Penalties  : 

Any  person  who  shall  willfully  alter  or  destroy  any  register 
or  certificates  provided  for  in  this  chapter,  or  issue  any  receipt 
or  certificate  without  entering  and  preserving  in  such  book,  the 
registered  memorandum;  or  who  shall  knowingly  issue  any 
certificate  herein  provided  for  when  the  commodity  or  com- 
modities therein  enumerated  are  not  in  fact  in  the  building  or 
buildings  it  is  certified  they  are  in;  or  shall,  with  intent  to  de- 
fraud, issue  a  second  or  other  certificate  for  any  such  commodity, 
for  which,  or  for  any  part  of  which,  a  former  valid  certificate 
is  outstanding  and  in  force;  or  shall,  while  any  valid  certificate 
for  any  part  of  the  commodities  mentioned  in  this  chapter  is 
outstanding  and  in  force,  sell,  incumber,  ship,  transfer,  or  re- 
move from  the  elevator,  warehouse  or  building  where  the  same 
is  stored,  any  such  certified  j^roperty,  or  knowingly  jiermit  the 
same  to  be  done,  without  the  written  consent  of  the  holder  of 
such  certificate;  or  if  any  person  knowingly  receives  any  such 
property  or  helps  to  remove  the  same,  he  shall,  upon  convic- 
tion, be  punished  by  fine  not  exceeding  ten  thousand  dollars, 
or  by  imprisonment  in  the  penitentiary  not  exceeding  five 
years.     Id.  sec.  3128. 

Section  2171,  Code  1873  (containinj?  similar  provisions  to 
above)  construed : 

W'eighmasters'  tickets  held  not  warehouse  receipts  in  meaning 
of  similar  provisions  to  above.  Cathcart  v.  Snow,  64  la. 
584. 


IOWA.  215 

Certificates  as  evidence — Lien  : 

All  warehouse  certificates  or  other  evidences  of  the  deposit 
of  property,  issued  by  any  warehouseman,  wharfinger  or  other 
person  engaged  in  storing  property  for  others,  shall  be  in  the 
hands  of  the  holder  thereof  presumptive  evidence  that  the  title 
to  the  property  therein  described  is  in  the  holder  of  such  in- 
strument. Such  property  shall  remain  in  store  until  otherwise 
ordered  by  the  holder  of  such  certificate  or  other  evidence  of 
deposit,  and  shall  not  be  removed  by  such  warehouseman,  or 
knowingly  suffered  to  pass  fioni  liis  control,  without  the  written 
consent  of  the  depositor  or  his  assignee,  and  shall  be  subject  to 
all  just  charges  for  storage  thereof;  and  such  warehouseman  or 
other  depositary  shall  have  a  lien  thereon  for  such  charges, 
and  may  retain  possession  thereof  until  they  are  paid.  Id. 
sec.  3129. 

Unclaimed  property— Lien  for  charges  : 

Property  transported  by,  or  stored  or  left  with,  any  forward- 
ing and  commission  merchant,  express  company,  carrier  or 
bailee  for  hire  shall  be  subject  to  a  lien  for  the  lawful  charges 
thereon  for  the  transportation  and  storage  thereof,  or  charges 
and  services  thereon  or  in  connection  therewith;  and  if  any 
such  property  shall  remain  in  the  possession,  unclaimed,  of  any 
of  the  persons  named  in  this  section  for  three  months,  with  the 
just  charges  thereon  due  and  unpaid,  such  person  shall  first 
give  notice  of  the  amount  of  the  charges  thereon  to  the  owner 
or  consignee  thereof,  if  his  whereabouts  is  known,  if  not,  he  shall 
go  before  the  nearest  justice  of  the  peace,  and  make  an  affi- 
davit, stating  the  time  and  place  where  such  property  was  re- 
ceived, the  marks  or  brands  by  which  the  same  is  designated,  if 
any,  and,  if  not,  then  such  other  description  as  may  best  answer 
the  purpose  of  indicating  what  the  property  is,  and  the  probable 
value  of  the  same,  and  to  whom  consigned,  also  the  charges  paid 
thereon,  accompanied  by  the  original  receipt  for  such  charges 
and  by  the  bill  of  lading,  also  any  other  charges  due  and  unpaid, 
and  whether  the  whereabouts  of  the  owner  or  consignee  is  known 
to  the  affiant,  and  whether  such  notice  was  first  given  to  him  as 
herein  provided;  which  affidavit  shall  be  filed  by  the  justice  for 
the  inspection  of  any  one  interested  therein,  and  an  entry  made 


216  IOWA    LAWS. 

in  the  entry  book  of  the  substance  of  the  affidavit,  and  a  state- 
ment when,  where  and  by  whom  made.     Id.  sec.  3130. 

Section  26,  General  Statutes,  chapter  107  of  Laws  1873 
(containing  provisions  similar  to  above),  construed  : 

Under  similar  provision  to  the  above,  it  was  held  that  the 
notice  to  the  owner  must  be  given  before  tlie  sale  and  that  if 
this  be  done  the  statute  is  complied  with.  It  is  not  necessary 
that  in  every  case  the  notice  be  given  to  the  owner  before  the 
expiration  of  three  months  from  the  receipt  of  the  goods.  Jef- 
fries V.  Snyder,  110  la.  359. 

Sale — Notice : 

If  the  property  remains  unclaimed  and  the  charges  unpaid, 
the  person  in  possession,  if  the  probable  value  does  not  exceed 
one  hundred  dollars,  shall  advertise  the  same  for  fourteen  days, 
by  posting  notices  in  five  of  the  most  public  places  in  the  city 
or  locality  where  said  property  is  held,  giving  such  description 
as  will  indicate  what  is  to  be  sold ;  if  the  goods  exceed  the  proba- 
ble value  of  one  hundred  dollars,  the  length  of  notice  shall  be 
four  weeks,  and  there  shall  be  a  publication  thereof  for  the  same 
length  of  time  in  some  newspaper  of  general  circulation  in  the 
locality  w^here  the  property  is  held,  if  there  be  one,  and,  if  not, 
then  in  the  next  nearest  news]3aper  published  in  that  neighbor- 
hood, at  the  end  of  which  period,  if  the  property  is  still  unclaimed 
or  charges  unpaid,  it  maybe  sold  by  him  at  i)ublic  auction,  be- 
tween the  hours  of  ten  o'clock  a.  m.  and  four  o'clock  p.  m.,  for 
the  highest  price  the  same  will  bring,  which  sale  may  be  con- 
tinued from  day  to  day,  by  public  announcement  to  that  effect 
at  the  time  of  the  adjournment,  until  all  the  property  is  sold; 
and  from  the  proceeds  thereof  all  charges,  costs  and  expenses 
of  the  sale  shall  be  paid,  which  sales  shall  be  conducted  after  the 
manner  of  sherifTs'  sales,  and  like  costs  taxed  for  the  services, 
/d.  sec.  3131. 

Section  2179  of  the  Code  of  1873  (containing  provisions 
similar  to  abore)  construed  : 

Whether  or  not  the  value  of  the  goods  is  less  or  more  than 
one  hundred  dollars,  and  whether  or  not  the  notices  were  posted 


IOWA.  217 

in  such  places  as  to  confoi'iii  to  tlic  icciuirenients  of  similar  pro- 
visions to  the  above,  /ie/c/ proper  questions  lor  the  jury.  Jeffries 
V.Snyder,  110  la.  359. 

Perishable  property  : 

Fruit,  fresh  fish,  oysters,  game  and  other  perishable  property 
thus  held  shall  bo  retained  twenty-four  hours,  and,  if  not  claimed 
within  that  time  and  charges  paid,  after  the  proper  afhdavit  is 
made  as  required  by  the  second  preceding  section,  may  be  sold 
either  at  public  or  private  sale,  in  the  discretion  of  the  party 
holding  the  same,  for  the  highest  price  that  the  same  will  bring, 
and  the  proceeds  of  the  sale  disposed  of  as  provided  in  the  last 
preceding  section.  In  either  case,  if  the  owner  or  consignee  of 
said  unclaimed  property  resides  in  the  same  city,  town  or  locality 
in  which  the  same  is  held,  and  is  known  to  the  agent  or  party 
having  the  same  in  charge,  then  personal  notice  shall  be  given 
to  him  in  writing  that  the  goods  are  held  subject  to  his  order 
on  payment  of  charges,  and  that,  unless  he  pays  the  same  and 
removes  the  property,  it  will  be  sold  as  provided  by  law.  Id. 
sec.  3132. 

Disposition  of  proceeds : 

After  the  charges  on  the  property  and  the  costs  of  sale  have 
been  taken  out  of  the  proceeds,  the  seller  shall  deposit  the  ex- 
cess with  the  county  treasurer  of  the  county  where  the  goods 
were  sold,  subject  to  the  order  of  the  owner,  take  a  receipt 
therefor,  a  nil  (k^posit  the  same  with  the  county  auditor.  At 
the  same  time  he  shall  also  file  a  verified  schedule  of  the  prop- 
erty with  the  treasurer,  giving  the  name  of  the  consignee  or 
owner,  if  known,  of  each  piece  of  property  sold,  the  sum  realized 
from  the  sale  of  each  separate  package,  describing  the  same, 
together  with  a  copy  of  the  advertisement  hereinbefore  pro- 
vided for,  and  a  full  statement  of  the  receipts  of  the  sale,  and 
the  amount  disbursed  to  pay  charges  and  expenses  of  sale,  which 
shall  all  be  filed  and  preserved  in  the  treasurer's  office  for  the 
inspection  of  any  one  interested  in  the  same.     Id.  sec.  3132. 

Duty  of  treasurer — Refunding  to  owner  : 

If  the  money  remains  in  the  hands  of  the  treasurer  unclaimed, 


218  IOWA    LAWS. 

he  shall  place  the  same  to  the  credit  of  the  county  in  his  next 
settlement,  and  if  it  so  remains  unclaimed  for  one  year,  it  shall 
be  paid  to  the  school  fund;  but  any  claimant  therefor  may  any 
time  within  ten  years  appear  before  the  board  of  supervisors 
and  establish  his  right  to  the  same  by  competent  legal  evidence, 
in  which  case  the  original  sum  deposited  shall  be  paid  him  out 
of  the  county  treasury.     Id.  sec.  3133. 

False  Avareliouse  receipts— Penalty : 

If  any  person  sell,  transfer  or  dispose  of  any  receipt  or  voucher, 
given  or  purporting  to  have  been  given  by  any  person  for  prop- 
erty in  store,  knowing  that  such  person  has  not  in  his  posses- 
sion such  property,  or  any  part  thereof,  he  shall  be  fined  not 
exceeding  one  thousand  dollars  and  imprisoned  in  the  peni- 
tentiary not  exceeding  five  years.     Id.  sec.  5068. 

Section  4088  of  the  Code  of  1873  (containing  provisions 
similar  to  above)  construed  : 

Where  a  warehouseman  shipped  wheat  out  of  the  state,  with- 
out the  return  of  the  warehouse  receipt,  held,  under  section  4088 
of  the  Code  of  1873,  that  he  was  criminally  liable,  that  such  stat- 
ute was  for  the  protection  of  the  holder  of  the  receipt  and  also 
third  persons.  Evidence  tending  to  show  the  shipment  to  have 
been  made  with  consent  of  owner  held  inadmissible.  State  v. 
Stevenson,  52  la.  701. 


IOWA.  219. 

DECISIONS  AFFECTING  WAREHOUSEMEN. 

A. 

Bailment — Bailee  may  maintain  action  jor  loss  or  damage. 

A  bailee,  althougli  ho  has  not  the  title,  has,  in  addition  to  the 
possession  of  the  chattel,  a  special  limited  or  qualified  property 
therein,  which  gives  him  a  right  of  action  against  any  one, 
whether  the  bailor  or  a  stranger,  interfering  with  his  possession 
or  doing  damage  to  the  chattel.  Allen  v.  Barrett  &  Carlton 
et  al,  100  la.  16. 

Bailment  and  sale. 

A  warehouseman  received  wheat  with  the  understanding  that 
when  the  depositor  got  ready  to  sell  the  former  would  give  the 
highest  market  price  therefor  or  an  equal  amount  of  wheat  of 
the  same  grade  and  quality.  It  was  shown  that  it  was  a  custom 
among  warehousemen,  when  they  received  wheat  to  ship  it  for 
sale,  whenever  they  saw  fit,  retaining  a  sample.  It  was  held 
that  this  constituted  a  sale  and  not  a  bailment.  Johnston  v. 
Browne  et  al,  37  la.  200;  Barnes  Bros.  v.  McCrea  &  Co.  et  al 
75  la.  267. 

Same — Commingling  of  grain. 

Where  a  receipt,  given  for  grain  received  in  storage,  provided 
in  express  terms  that  the  grain  might  be  stored  with  other 
grain  of  the  same  kind  and  grade,  antl  it  was  shown  that  the 
warehouseman  was  in  the  habit  of  issuing  such  receipts  to  his 
other  depositors,  and  it  was  also  shown  to  be  his  known  practice 
to  purchase  grain  on  his  own  account  and  mingle  it  with  the 
grain  of  his  depositors  and  that  he  was  continually  making 
sales  from  the  grain  stored,  so  that  in  all  likelihood  the  whole 
mass  was  changed  during  a  period  of  a  few  months,  it  was  held 
that  the  transaction  was  one  of  bailment  and  not  of  sale  and 
that  the  depositors  and  warehouseman  became  tenants  in  com- 
mon. Sexton  &  Ahhott  v.  Graham  et  al,  53  la.  181;  Nelson  v. 
Brown,  Doty  &  Co.,  44  la.  455;  ^Sarne  v.  Same,  53  la.  bbb;  Arthur 
V.  Chicago,  R.  I.  &  Pac.  Ry.,  61  la.  648.  But  see  Barner  Bros. 
V.  McCrea  et  al,  75  la.  267. 


220  IOWA   DECISIONS. 

Same — Contract  construed. 

Plaintiff  delivered  to  defendants  a  large  quantity  of  corn  and 
received  therefor  a  receipt  in  the  following  words:  "Received 
in  store,  of  C.  H.  Marks,  one  load  of  corn,  subject  to  storage. 
Number  of  bushels,  2,920."  During  the  night  after  the  day  of 
delivery,  the  corn  and  elevator  were  burned.  An  action  was 
brought  to  recover  the  value  of  the  corn  on  tlic  theory  that  the 
defendants  purchased  the  same.  It  was  held  that  the  contract 
was  one  of  bailment  and,  therefore,  the  defendants  were  not 
liable.  Marks  v.  The  Cass  County  Mill  &  Elevator  Co.,  43  la. 
146;  Arthur  v.  Chicago,  Rock  Island  &  Pacific  Ry.  Co.,  fil  la.  648. 

Same — Same — Effect  of  statement  in  receipt  "bought  of"  etc., 
"at  owner's  risk  as  to  fire." 

In  an  action  against  a  warehouseman  in  which  it  was  alleged 
that  he  was  responsible  for  grain  which  had  been  destroyed 
by  fire  while  stored  with  him,  on  the  ground  that  there  had  been 
a  sale  thereof,  the  evidence  showed  as  follows  :  That  the  grain 
in  question  had  not  been  mixed  in  a  common  bin;  that  there 
had  been  no  demand  made  by  the  plaintiff  for  the  return  of  the 
grain  but  that  the  defendant  by  his  agent  had,  a  short  time 
before  the  fire,  made  an  offer  to  the  plaintiff  to  purchase  the 
grain.  It  was  held  that  the  transaction  was  not  a  sale  but  a 
bailment,  and  while  it  is  true  that  the  word  "bought''  in  the 
receipt  unexplained,  would  import  a  sale,  but  that  when  taken 
in  connection  with  the  expression  "at  owner's  risk,"  etc.,  and 
in  the  light  of  certain  parol  evidence  which  was  received  to 
explain  the  word,  that  it  clearly  appears  that  a  sale  was  not 
contemplated  by  the  parties.     Irons  v.  Kentner,  51  la.  88. 

Same — Same — Continues  a  bailment  while  stored — Mixing  with 
other  grain  not  conversio7i. 

A  warehouseman  issued  a  receipt  as  follows:  "Received  of 
C.  C.  Cowell  for  Thompson  in  store  for  account  and  risk  C.  C. 
Cowell,  one  hundred  and  eighty-three  bushels  No.  3  wheat, 
loss  by  fire,  heating  and  the  elements  at  owner's  risk.  Wheat 
of  equal  test  and  value,  but  not  the  identical  wheat,  may  be 
returned."     The  court  construed   the  above  contract  to  mean 


IOWA.  221 

that  so  long  as  the  wheat  remains  in  the  elevator,  loss  by  fire, 
heating  and  the  elements  is  at  the  risk  of  the  depositor.  In 
other  words,  so  long  as  the  wheat  is  kept  in  the  elevator,  though 
thrown  in  a  common  bin  and  mingled  with  other  wheat  of  like 
quality,  it  is  a  m(>re  bailment.  But  the  warehouseman  is  not 
under  obligation  to  retain  the  wheat  of  the  depositor  in  his 
warehouse.  He  may,  without  breach  of  contract,  and  without 
being  guilty  of  conversion,  ship  the  wlieat  away  on  his  own  ac- 
count. When  he  avails  himself  of  this  i)rivilege  the  character 
of  the  transaction  and  the  relation  of  tlio  ])arti(>s  change.  There 
is  then  a  completed  sale,  and  the  warehouseman  assumes  a  lia- 
bility which  he  can  discharge  only  by  payment  in  wheat  of  like 
quality  and  value,  or  in  money.  Nelson  v.  Brown,  Doty  &  Co., 
44  la.  455. 

Same — Statute  of  limitations  in  case  of. 

In  cases  of  bailment  the  statute  of  limitations  does  not  com- 
mence to  run  until  the  bailee  holds  the  property  adversely  to 
the  claim  of  his  bailor,  that  is,  until  there  has  been  a  conver- 
sion.    Reizenstein  v.  Marquardt,  75  la.  294. 

H. 

Unclaimed  goods — Sale  of — Statutory  notice — Questions  for  the 
jury. 

In  an  action  for  conversion  against  a  warehouseman,  the  de- 
fendant alleged  that  the  goods  in  question  had  been  stored 
with  him  and  that  after  the  period  of  six  months  had  elapsed 
without  the  payment  of  charges,  he  sold  the  same,  as  he  was 
authorized  to  do  by  law;  that  pursuant  to  the  statute  he  had 
deposited  the  balance  remaining,  after  deducting  his  proper 
charges,  with  the  county  treasurer.  The  plaintiff  obtained 
judgment  for  the  value  thereof  and  the  defendant  appealed. 
It  is  provided  by  the  law  that  if  the  goods  are  of  a  greater  value 
than  one  hundred  dollars,  a  dilTerent  form  of  notice  shall  be 
given  than  if  they  are  worth  one  hundred  dollars  or  less.  It 
was  left  to  the  jury  to  say  whether  the  value  of  the  goods  ex- 
ceeded one  hundred  dollars.  It  was  held  that  this  was  a  proper 
question  for  the  jury  and  also,  whether  or  not  the  notices  required 
by  statute  were  posted  in  "the  most  public  places  in  the  city." 


222  IOWA   DECISIONS. 

The  plaintiff   contended  that   he  was  entitled  to  exemplary 

damages.     It  was  held  that  no  such  damages  should  have  been 

allowed.     \'ercUct  and  judgment  for  plaintiff.     The  case  was 

modified  and  affirmed  to  the  extent  that  if  the  plaintiff  would 

remit  two  hundred  dollars  from  the  amount  of  the  judgment  and 

pay  costs  of  appeal  that  the  same  would  be  affirmed.     That 

otherwise  the  case  would  be  reversed.     Jeffries  v.  Snyder,  110 

la.  359. 

I. 

Comminglmg  of  grain — //  unauthorized  constitutes  conversion. 

A  warehouseman  received  from  the  plaintiff  a  quantity  of 
grain  and  issued  to  him  the  following  receipt:  "Received  in 
store,  of  C.  Dierkson,  twelve  loads  of  wheat,  subject  to  storage. 
No.  of  bushels,  462  20-60."  Immediately  upon  the  delivery 
of  the  grain  to  the  warehouseman  it  was  mingled  with  other 
grain  therein  stored  and  subsequently  sold.  The  warehouse 
and  contents  were  destroyed  by  fire.  It  was  contended  on 
behalf  of  the  plaintiff  that  the  transaction  constituted  a 
sale  and  that  the  warehouseman  was  liable  for  the  value  of 
the  grain.  The  defendant  contended  that  as  the  evidence 
showed  he  had  in  store  at  the  time  of  the  fire  more  wheat  than 
that  claimed  by  the  plaintiff,  he  was  not  liable  as  the  contract 
was  one  of  bailment.  The  court  held  that  under  these  cir- 
cumstances, it  made  no  difference  whether  it  were  bailment  or 
sale,  that  the  mixture  of  the  plaintiff's  wheat  with  other  wheat, 
without  his  authority,  constituted  a  conversion  and  that  de- 
fendant thereupon  became  absolutely  liable  for  the  value 
thereof  to  the  plaintiff.  Dierkson  v.  The  Cass  County  Mill  & 
Elevator  Co.,  42  la.  38.  But  see  Arthur  v.  Chicago,  R.  I.  &  Pac. 
Ry.  Co.,  61  la.  648. 

Same— Without  authority  of  depositor— Does  not  constitute  con- 
version. 

In  an  action  against  to  a  warehouseman  for  the  loss  of  grain 
destroyed  by  fire,  in  which  it  was  shown  that  the  grain  had  been 
mingled  with  other  grain,  it  was  held  that  the  mere  fact  of  ad- 
mixture of  goods  of  the  same  quality  does  not  divest  the  owner 
of  his  property,  whether  they  acted  with  or  without  his  knowl- 
edge.    Arthur  v.  Chicago,  R.  I.  &  Pac.  Ry.  Co.,  61  la.  648. 


IOWA.  223 

Same — Separation  by  warehouseman. 

Grain  belonging  to  a  warehouseman's  several  depositors,  and 
some  belonging  to  himself,  were  mingled  with  the  knowledge 
of  all  parties.  The  warehouseman  without  the  consent  of  his 
depositors  shipped  an  amount  of  the  grain  from  the  warehouse 
in  excess  of  that  which  he  owned.  It  was  held  that  the  grain 
remaining  in  the  warehouse  belonged  to  the  several  parties 
who  h(^ld  valid  receipts  therefor.  Sexton  &  Abbott  v.  Graham 
et  al,  53  la.  181. 

Warehouse  receipts — When  invalid — Gambling  transactions 
through  board  of  trade. 

An  instruction  to  the  jury  that  certain  warehouse  receipts 
were  void  if,  they  found  from  the  evidence  that  the  receipts 
were  delivered,  not  for  the  purpose  of  affecting  a  sale  of  the 
commodity  which  they  represented,  and  that  the  purchase 
price  therefor  was  never  to  be  paid,  but  that  the  matter  was 
to  be  settled  and  adjusted  by  the  payment  of  the  difference 
between  the  purchase  or  selling  price,  and  the  market  price 
at  the  time  of  the  settlement,  was  held  correct  on  the  ground 
that  it  was  a  gambling  contract.  Lowe  Bros.  v.  Young,  59  la. 
364,  following  Pixley  v.  Boynton,  79  111.  351. 

Same — Negotiability — Scale  tickets  not  warehouse  receipts — 
Purchaser  not  protected. 

The  plaintiff  purchased  certain  scale  tickets  from  one  who 
had  deposited  a  quantity  of  wheat  with  the  defendant  ware- 
houseman. Such  depositor  had  been  notified  by  the  defend- 
ant to  surrender  the  tickets  and  receive  in  lieu  thereof  ware- 
house receipts.  He  failed  to  do  this,  however,  and  sold  the 
tickets  to  the  plaintiff.  Before  such  sale  was  made  the  defend- 
ant had  sold  the  wheat  and  had  appropriated  the  money  re- 
ceived therefrom  towards  the  payment  of  a  debt  owed  by  the 
depositor  to  the  warehouseman.  On  the  above  stated  facts 
it  was  held  that  the  plaintiff  could  not  recover,  that  the  scale 
tickets  held  by  plaintiff  were  not  warehouse  receipts  and  that 
when  he  took  the  same  he  took  no  title  thereby.  The  tickets 
failed  to  show  that  the   transaction  was  a  contract  and  there 


■J.-2A  IOWA    DECISIONS. 

was  no  statement  thereon  as  to  the  number  of  bushels  or  grade 
of  the  wheat  nor  as  to  terms  or  conditions  of  storage.  Cathcart 
V.  Snow  &  Huber,  64  la.  584. 

Same — As  collateral — Person  to  whom  issued  having  no  title 
to  the  goods — Effect. 

A  warehouseman  issued  a  receipt  to  one  who  had  no  grain  in 
store  at  the  time  but  to  secure  the  payment  of  indebtedness 
due  by  the  warehouseman  to  such  person.  It  was  held  that 
such  receipt  was  invahd  as  against  one  who  was  the  bona  fide 
holder  of  the  original  valid  receipt  and  that  under  sections  2171 
and  2172  of  the  Code,  the  person  to  whom  the  warehouse  receipt 
is  issued  must  be  the  owner  of  the  goods  represented  thereby. 
Sexton  &  Abbott  v.  Graham  et  al.,  53  la.  181. 

Same — Parol  evidence  not  receivable  to  contradict  or  vary  the 
terms  thereof. 

If  warehouse  receipts  are  regarded  merely  as  receipts  they 
may  be  explained  by  parol  evidence  and  a  contract  existing 
between  the  parties  may  be  shown  by  competent  testimony. 
But  if  they  are  to  be  regarded  as  contracts,  they  cannot  be 
explained  or  varied  by  oral  evidence.  While  such  evidence 
may  be  admitted  to  explain  the  language  of  the  receipts,  if 
ambiguous,  the  terms,  conditions  and  obligations  of  the  contract 
cannot  be  changed  in  that  way.  Marks  v.  The  Cass  County 
Mill  &  Elevator  Co.,  43  la.  146  ;  Lowe  Bros.  &  Co.  v.  Young, 
59   la.  364. 

Sa77ie — Evidence  of  oral  agreement  receivable — Custom. 

The  plaintiff  sued  the  defendant,  a  warehouseman,  for  the 
value  of  certain  grain  which  he  had  stored  with  him,  expressly 
alleging  that  the  contract  was  not  in  writing.  After  the  storage 
of  the  grain,  the  warehouse  and  contents  were  destroyed  by 
fire.  The  defendant,  in  his  answer,  set  forth  that  the  wheat, 
in  accordance  with  the  custom  known  to  the  plaintiff,  had  been 
mixed  with  other  wheat  then  in  store  and  that  the  same  number 
of  bushels  of  other  grain  of  the  same  grade  were  stored  in  the 
warehouse  at  the  time  of  its  destruction.  The  defendant  showed 
that  this  custom  was  known  to  i)laintiff.  At  the  trial  the 
plaintiff  offered  his  warehouse  receipts  in  evidence  to  prove 


IOWA.  225 

that  the  contract  was  one  of  sale  and  not  bailment.  The  court 
held  that  as  the  plaintiff  had  stated  in  his  declaration  that 
the  contract  was  an  oral  one,  he  could  not  at  the  trial  hitroduce 
proof  to  the  effect  that  the  warehouse  receipt  contained  all  the 
terms  of  the  contract.  It  was  further  held  that  the  evidence 
of  the  custom  in  regard  to  the  mixing  of  grain  was  properly 
received.  This  case  distinguished  from  Johnson  v.  Browne,  37 
la.  20.  Hughes  v.  Stanley,  45  la.  622 ;  Irons  v.  Kentner,  51 
la.  88. 

B. 

Bill  of  lading — "Good  order,"  effect  of. 

Where  plaintiff  took  bill  of  lading  from  steamboat  company 
in  which  it  acknowledged  to  have  received  "in  good  order" 
230  barrels  of  mess  pork,  held  that  the  good  order,  etc.,  re- 
ferred only  to  the  external  condition  and  not  to  the  state  of  the 
pork  itself.  West  v.  Steamboat  Berlin,  3  la.  532;  Mitchell  v. 
U.  S.  Ex.  Co.,  46  la.  214. 

Same — Effect  of  assigmnent — Parol  testimony. 

An  assignment  of  a  bill  of  lading  operates  as  a  transfer  of  the 
title  to  the  property  therein  represented.  Where,  therefore, 
there  was  a  provision  printed  across  the  face  of  a  bill  of  lading 
to  this  effect,  "This  bill  to  be  surrendered  before  property  is 
delivered,"  it  was  held  that  a  party  taking  such  bill  of  lading 
as  collateral  had  a  right  to  rely  upon  this  provision  and  that  it 
was  part  of  the  contract.  Further,  that  parol  testimony  would 
not  be  received  to  vary  or  contradict  the  bill  of  lading  in  so  far 
as  the  same  was  a  contract.  Garden  Grove  Bank  v.  Humeston, 
etc.,  Ry.  Co.,  67  la.  526;  Hewett  v.  Chicago,  B.  &  Q.  Ry.  Co.,  63 
la.  Qll;  Wilde  v.  Merchants'  Despatch  T.  Co.,  47  la.  272;  Chapin 
&  Irish  V.  Chicago,  M  &  St.  P.  Ry.  Co.,  79  la.  582;  Higley  & 
Co.  V.  Burlington,  C.  R.  &  N.  Ry.  Co.,  99  la.  503;  First  National 
Bank  v.  Mt.  Pleasant  Milling  Co.,  103  la.  518.  But  see  Anchor 
Mill  Co.  V.  Burlington,  C.  R.  &  N  Ry.  Co.,  102  la.  262. 

Same — Delivery  pursuant  to  consignee's  directions  without  re- 
turn of  hill  of  lading — Subsequent  assignment  of  bill  of  lading  by 
consignee  ineffectual. 

The  plaintiff  purchased  a  carload  of  wheat  from  the  consignee 
15 


226  IOWA    DECISIONS. 

thereof  which  was  stored  in  the  cars  belonging  to  the  defendant 
railroad  company.  The  consignee  directed  the  defendant  to 
place  the  cars  at  a  certain  point  designated  by  the  plaintiff 
which  it  accordingly  did.  At  this  time  the  consignee  did  not 
surrender  the  bill  of  lading  to  the  plaintiff  but  he  used  the  same 
in  the  purchase  of  a  draft  at  a  bank  which  became  an  intervenor 
in  this  action.  At  the  trial  the  court,  on  motion  of  the  inter- 
venor, directed  a  verchct  for  it  which  was  accordingly  rendered. 
On  appeal  it  was  held  that  the  placing  of  the  cars  by  the  defend- 
ant railroad  company  in  the  location  designated  by  the  con- 
signee constituted  a  delivery  to  the  plaintiff,  and  the  liability 
of  the  defendant  as  carrier  thereupon  ceased.  That  the  plain- 
tiff then  became  the  purchaser  thereof  and  the  subsequent  as- 
signment of  the  bill  of  lading  to  the  intervenor  could  not  de- 
prive the  plaintiff  of  his  title  to  the  wheat.  Anchor  Mills  Co. 
V.  Burlington,  C.  R.  &  N.  Ry.  Co.,  102  la.  262. 


KANSAS.  227 


CHAPTER  XVI. 
KANSAS. 

LAWS  PERTAINING  TO  WAREHOUSEMEN. 

Corporations  may  be  formed  : 

In  addition  to  the  purposes  for  which  private  corporations 
may  be  formed,  as  designated  in  section  five  of  chapter  twenty- 
three  of  the  General  Statutes  of  1868,  as  said  section  has  been 
heretofore  enlarged  and  amended,  private  corporations  may  be 
formed  and  organized  in  the  manner  prescribed  in  said  chap- 
ter twenty-three  for  the  construction  and  maintenance  of  ware- 
houses, elevators  and  granaries.  Gen.  Stats.  Kan.  1901, 
sec.  1431. 

Property  left  in  warehouses  : 

If  any  person  shall  leave  in  any  public  or  private  warehouse 
in  this  state  any  property  of  a  perishable  nature,  or  which,  if 
not  taken  away  and  sold  within  fifteen  months  from  the  time 
at  which  such  property  was  so  left,  would  not  at  the  expiration 
of  that  time  be  worth  the  charges  which  should  then  be  due 
upon  such  property,  and  if  the  charges  upon  such  proi)erty  shall 
not  be  paid,  then  and  in  that  case  it  shall  be  lawful  for  the  oc- 
cupant or  occupants  of  such  warehouse  to  sell  at  auction  to  the 
highest  bidder  so  much  of  such  property  as  will  pay  the  charges 
due,  and  the  expenses  of  selling  and  advertising  the  same,  upon 
giving  not  less  than  three  weeks'  public  notice  of  the  time  and 
place  of  such  sale,  in  two  or  more  newspapers  publislied  in  the 
town  where  such  warehouse  may  be  situated,  or  the  vicinity 
thereof.     Id.  sec.  1432. 

Receipts  may  be  issued : 

No  warehouseman,  wharfinger  or  other  person  shall  issue  any 
receipt  or  other  voucher  for  any  goods,  wares,  merchandise, 
grain,  or  other  produce  or  commodity,  to  any  person  or  persons 


228 


KANSAS    LAWS. 


purporting  to  be  the  owner  or  owners  thereof,  unless  such  goods, 
wares,  merchandise,  or  other  produce  or  commodity  shall  have 
been  bona  fide  received  into  store  by  such  warehouseman, 
wharfinger,  or  other  person,  and  shall  be  in  store  and  under 
liis  control  at  the  time  of  issuing  such  receipt.     Id.  sec.  1433. 

Not  to  he  issued  : 

No  warehouseman,  wharfinger  or  other  person  shall  issue  any 
receipt  or  other  voucher  upon  any  goods,  wares,  merchandise, 
grain,  or  other  produce  or  commodity,  to  any  person  or  persons 
as  security  for  any  money  loaned,  or  other  indebtedness,  unless 
such  goods,  wares,  merchandise,  grain  or  other  produce  or  com- 
modity shall  be,  at  the  time  of  issuing  such  receipt,  the  prop- 
erty of  such  warehouseman  or  wharfinger,  or  other  person,  and 
shall  be  in  store  and  under  his  control  at  the  time  of  issuing 
such  receipt  or  other  voucher,  as  aforesaid.     Id.  sec.  1434. 

Written  assent : 

No  warehouseman,  wharfinger  or  other  person  shall  sell  or 
incumber,  ship,  transfer,  or  in  any  manner  remove  beyond  his 
immediate  control  any  goods,  wares,  merchandise,  grain  or 
other  produce  or  commodity,  for  which  a  receipt  shall  have 
been  given  as  aforesaid,  without  the  written  assent  of  the  per- 
son or  persons  holding  such  receipt.     Id.  sec.  1435. 

Private  and  public  : 

All  persons  who  shall  keep  a  warehouse  in  this  state  for  the 
storing  of  grain,  in  which  the  grain  of  each  person  stored  therein 
shall  be  kept  in  a  separate  bin,  distinct  from  the  grain  of  all 
other  persons,  shall  be  dominated  "private  warehousemen," 
and  all  ))ersons  keeping  a  warehouse  for  the  storing  of  grain 
in  bulk,  and  in  which  the  grain  of  difTerent  owners  shall  in  any 
way  be  mixed,  shall  be  dominated  ''pubhc  warehousemen." 
Id.  sec.  1436. 

Give  receipt : 

Every  public  and  private  warehouseman  receiving  grain  into 
store  shall,  on  demand  of  the  owner  thereof,  receipt  to  such 
owner,  setting  forth  the  quantity,  kind  and  grade  of  such  grain, 
which  receipt,  in  any  action  against  such  warehouseman  for 


KANSAS.  229 

damages  to  such  grain,  or  lor  other  cause  relating  thereto,  shall 
be  evidence  of  the  quantity,  kind  and  grade  of  such  grain,  and 
when  received  by  such  warehouseman.     Id.  sec.  1437. 

Grain  kept  separate : 

Every  private  warehouseman  shall  keep  the  grain  of  every 
person  that  may  be  stored  with  such  warehouseman  entirely 
separate  and  distinct  from  the  grain  or  property  of  a  like  nature, 
kind  or  quality,  of  any  other  person  or  persons;  and  upon  the 
surrender  of  the  warehouse  receipt  provided  in  section  three 
of  this  act  shall  deliver  to  the  person  so  surrendering  the  same 
the  identical  grain  described  in  such  receipt,  and  for  which  said 
receipt  was  issued.     Id.  sec.  1438. 

Grain  in  bnlk  : 

It  shall  be  lawful  for  public  warehousemen  to  store  grain  in 
bulk,  and  mix  the  grain  of  like  kind  and  grade  of  different 
owners;  and  the  provisions  of  this  act  prohibiting  the  mixing 
of  the  grain  of  different  owners  have  no  application  to  public 
warehousemen.     Id.  sec.  1439. 

Receipts— Numbered— Duplicates— Cancellation— Punish- 
ment : 

All  warehouse  receipts  issued  to  the  owners  of  grain  stored  in 

any  warehouse  shall  be  consecutively  numbered,  and  no  two 

receipts  bearing  the  same  number  shall  be  issued  for  the  same 

grade  of  grain  by  any  warehouseman  from  the  same  warehouse 

during  the  same  calendar  year;  nor  shall  any  warehouseman 

issue  to  any  person  any  second  receipt  for  any  grain  in  store 

while  any  former  or  other  receipt  for  the  same  grain,  or  any 

part  thereof,  shall  be  outstanding  and  uncancelled,  except  in 

cases  of  lost  receipts,  when  "duphcates,"  so  marked,  may  be 

issued;  nor  shall  any  receipt  be  issued  to  any  person  for  a  greater 

amount  of  grain  than  such  person  shall  have  delivered  in  store 

at  the  time  of  the  issuing  of  such  receipt ;  nor  shall  any  receipt 

be  reissued  on  which  grain  has  once  been  delivered;  nor  shall 

any  receipt  be  issued  unless  the  grain  for  which  such  receipt 

is  issued  shall  be  actually  in  store  and  under  the  control  of  the 

warehouseman  issuing  such  receipt  at  the  time  such  receipt 

was  issued;  and  every  receipt,  when  once  surrendered,  and  the 


230  KANSAS    LAWS. 

grain  for  which  it  was  issued  deliveretl,  shall  be  cancelled,  and 
shall  never  thereafter  be  put  in  circulation.  Any  person  who 
shall  violate  any  of  the  provisions  of  this  section,  or  who  shall 
negotiate  or  put  in  circulation  any  warehouse  receipt  issued  in 
violation  of  any  of  the  provisions  of  this  act,  knowing  the  fraudu- 
lent character  of  such  receipt,  shall  be  deemed  guilty  of  a  felony, 
and  on  conviction  thereof  shall  be  fined  in  a  sum  not  less  than 
one  thousand  dollars  nor  more  than  five  thousand  dollars,  and 
imprisoned  in  the  penitentiary  not  less  than  one  year  nor  more 
than  five  years.     Id.  sec.  1440. 

Negotiable : 

All  receipts  for  grain  issued  by  any  warehouse  shall  be  nego- 
tiable by  indorsement  in  blank,  or  by  special  indorsement,  in 
the  same  manner  antl  to  the  same  extent  as  bills  of  exchange 
and  promissory  notes.     Id.  sec.  1441. 

Above  section  construed  : 

Secretary  and  manager  of  an  elevator  company  having  full 
authority  to  issue  warehouse  receipts  did  so  to  the  plaintiff  bank 
as  security  for  a  loan.  Held,  the  receipt  was  negotiable  paper 
and  defendant  was  estopped  to  deny  its  liability  thereon.  Bank 
V.  Capital  Elevator  Co.,  9  Kan.  App.  144. 

Right  to  visit  scales : 

All  persons  interested  in  any  grain  stored  in  any  warehouse 
shall  at  all  times  have  the  right  to  visit  such  warehouse,  and 
every  part  thereof  containing  grain,  and  shall  have  the  right  to 
examine  the  bin  or  bins  into  which  his  grain  is  being  delivered, 
or  from  which  it  is  being  taken,  or  into  which  it  is  or  may  be 
stored,  and  shall  also  have  the  right  to  inspect  and  test  the 
scales  on  which  such  grain  is  being  weighed;  and  in  case  any 
inaccuracy  is  suspected,  may  demand  that  the  public  sealer 
of  weights  may  test  the  said  scale.  If  they  are  found  correct, 
he  shall  pay  the  fees  of  such  sealer,  but  if  found  incorrect,  such 
fees  shall  be  paid  by  the  warehouse  keeper.  And  all  persons 
authorized  by  law  to  inspect  or  grade  grain  shall  have  the 
right  during  business  hours  to  visit  and  examine  all  the  bins 
of  each  warehouse  and  the  grain  therein  stored.     Id.  sec.  1442. 


KANSAS.  231 

Damaged  grain  : 

It  shall  be  lawful  for  any  i)ublic  warehouseman  to  sell  any  or 
all  damaged  grain  which  has  remained  in  store  for  one  year  or 
more,  and  -which  shall  have  become  damaged  while  stored  in 
his  warehouse,  for  account  of  parties  having  claim  thereto, 
after  giving  thirty  days'  notice,  by  publication  in  some  news- 
paper published  in  the  city  or  town  where  such  warehouse  is 
situated.     Id.  sec.  1443. 

Duties  of  railway  coinpanies — Liability — Notice  to  con- 
signee : 

It  shall  be  unlawful  for  any  railroad  or  railway  company  to 
deliver  any  grain  into  any  warehouse,  other  than  that  to  which 
it  is  consigned,  without  consent  of  the  owner  or  consignee  there- 
of; and  it  shall  be  the  duty  of  said  party  or  parties,  at  the  time 
of  shipment  of  said  grain,  or  before  it  reaches  its  destination,  to 
give  notice  to  the  railroad  or  railway  company,  by  card  on  the 
car  or  otherwise,  of  the  warehouse  into  which  said  grain  is  to  be 
delivered;  and  for  the  failure  to  deliver  grain  according  to  the 
direction  of  the  owner  or  consignee  thereof,  such  railroad  or 
railway  company  shall  be  liable  to  the  w^arehouseman  to  whom 
the  same  should  have  been  delivered  for  two  months'  storage 
of  all  such  grain  so  consigned  or  refused,  and  also  to  such  ware- 
houseman and  to  the  owner  of  such  grain  for  all  other  damages 
either  of  them  may  have  sustained  by  reason  of  such  refusal 
or  neglect  of  said  railroad  or  railway  company,  including  all 
necessary  expenses  incurred  by  him  or  them  in  the  prosecution 
of  suit  or  suits  against  such  railroad  or  railway  company;  or, 
if  such  grain  is  to  be  taken  from  the  cars  without  delivery  into 
any  warehouse,  the  railroad  or  raihvay  company,  shall  be  notified 
in  like  manner  thereof;  and  in  such  case  said  railroad  or  rail- 
way company  shall  notify  said  owmer  or  consignee  of  the  arrival 
of  said  grain  at  its  destination,  and  give  a  seasonable  [reason- 
able] time  for  the  removal  of  the  same,  and  for  the  failure  to 
give  such  notice,  when  necessary,  to  the  owner  or  consignee  of 
the  arrival  of  grain,  or  for  delivery  of  the  same  into  any  ware- 
house without  the  consent  of  such  owner  or  consignee,  or  with- 
out notice  or  opportunity  to  remove  the  same  from  the  cars  of 
said  railroad  or  railw^ay  company,  w^here  said  consent  is  not 


232  KANSAS   LAWS. 

given,  such  railroad  or  railway  company  shall  be  liable  to  the 
owner  of  such  grain  for  all  damages  he  may  have  sustained  by 
reason  of  the  illegal  action  of  such  railroad  or  railway  company, 
including  all  necessary  expenses  incurred  by  him  in  the  prosecu- 
tion of  such  suits  therefor,  and  all  necessary  expenses  incurred 
by  him  against  other  parties  to  recover  possession  of  such  grain. 
Id.  sec.  1444. 

Grain  inspection  : 

That  a  department  of  record  for  the  inspection  and  weighing 
of  grain  is  hereby  estabhshed,  to  be  called  the  state  grain  in- 
spection department.  Said  department  shall  have  full  charge 
of  the  inspection  and  weighing  of  grain  in  the  state  at  all  rail- 
road teiTuinals,  public  warehouses  or  other  points  within  the 
state  wherever  state  grain  inspection  and  weighing  may  here- 
after be  established,  at  the  discretion  of  the  chief  inspector. 
Id.  sec.  3223. 

Inspector : 

It  shall  be  the  duty  of  the  governor  to  appoint  a  suitable 
person,  to  be  confirmed  by  the  senate,  who  shall  be  known  as 
the  chief  inspector  of  grain  for  the  state  of  Kansas,  whose  term 
of  service  as  such  shall  continue  for  two  years  from  date  of  his 
appointment,  unless  removed  for  cause.  Said  chief  inspector 
shall  not  directly  or  indirectly  be  interested  in  buying  or  sell- 
ing grain,  either  on  his  own  account  or  for  others,  nor  shall  he 
be  directly  or  indirectly  interested  in  handling  or  storing  grain 
as  a  public  warehouseman  or  on  private  account  during  his 
term  of  office.     Id.  sec.  3224. 

Duties  : 

It  shall  be  the  duty  of  the  chief  inspector  to  have  a  general 
supervision  of  the  inspection  and  weighing  of  grain  as  required 
by  this  act  or  laws  of  the  state;  to  supervise  the  handling,  in- 
specting, weighing  and  storage  of  grain;  to  establish  necessary 
rules  and  regulations  for  the  weighing,  grading  and  inspection 
of  grain  as  hjive  not  otherwise  been  herein  provided  for,  and 
for  the  management  of  the  public  warehouses  of  the  state,  as 
such  rules  and  regulations  may  be  necessary  to  enforce  the 
provisions  of  this  act  or  any  law  of  this  state  in  regard  to  the 


KANSAS.  233 

same;  to  keep  proper  records  of  nil  the  inspecting  and  wcnghing 
done,  for  which  i)urpose  he  shall  have  power  to  employ  the 
necessary  office  force  and  {)rocure  the  necessary  books,  blanks 
and  other  material  needed  in  order  to  keep  perfect  and  proper 
records.  He  shall  investigate  all  complaints  of  fraud  or  op- 
pression in  the  grain  trade,  and  correct  the  same  so  far  as  may 
be  in  his  power :  Provided,  That  nothing  in  this  section  shall  be 
construed  as  delegating  any  power  or  authority  to  said  chief 
inspector  inconsistent  or  in  conflict  with  the  powers  and  au- 
thority delegated  to  other  persons  by  the  provisions  of  this  act. 
Id.  sec.  3225. 

0<ath  .and  bond  : 

The  chief  inspector  shall,  upon  entering  upon  the  duties  of 
his  office,  be  required  to  take  an  oath  that  he  will  faithfully 
and  strictly  discharge  the  duties  of  his  said  office  of  inspector 
according  to  law  and  the  rules  and  regulations  prescribing  his 
duties.  He  shall  execute  a  bond  to  the  people  of  the  state  of 
Kansas  in  the  penal  sum  of  ten  thousand  dollars,  with  sureties 
to  be  approved  in  the  same  manner  as  bonds  of  other  appointed 
officers,  conditioned  that  he  will  pay  all  damages  to  any  person 
or  persons  who  may  be  injured  by  reason  of  his  neglect,  refusal 
or  failure  to  comply  with  the  law,  rules  and  regulations  of  this 
act.     Id.  sec.  3226. 

Assistant  inspector : 

The  said  chief  inspector  shall  be  authorized  to  recommend 
to  the  governor  suitable  persons  as  may  be  qualified  for  assistant 
inspectors,  or  weighmasters,  to  be  acting  inspectors  or  weigh- 
masters  in  the  absence  of  the  chief  inspector,  who  shall  not  be 
interested  in  any  public  or  private  grain  warehouse,  or  in  the 
buying  or  selling  of  grain,  either  directly  or  indirectly,  and  also 
such  other  employees  as  may  be  necessary  to  properly  conduct 
the  business  of  his  office;  and  the  governor  shall  be  authorized 
to  make  such  appointment  if  found  by  him  necessary.  Id. 
sec.  3227. 

Bond  of  assistant : 

All  assistant  inspectors  or  weighmasters  appointed  under  this 
act  shall  be  under  the  supervision  of  the  chief  inspector,  to 


234 


KANSAS    LAWS. 


whom  they  shall  report  in  detail  all  service  performed  by  them 
at  the  close  of  each  working-day,  and  each  assistant  inspector 
or  weighmaster  shall  take  the  same  oath  as  the  chief  inspector, 
and  execute  a  bond  In  the  penal  sum  of  five  thousand  dollars, 
with  like  conditions  and  to  be  approved  in  like  manner  as  pro- 
\'ided  for  the  bond  of  the  chief  inspector.  Suit  may  be  brought 
upon  bonds  of  either  the  chief  inspector  or  assistant  inspectors 
in  any  court  having  jurisdiction  thereof,  in  the  county  or  city 
where  the  defendant  resides,  for  the  use  of  any  person  injured 
by  the  act  of  said  chief  inspector  or  assistant  inspectors.  Id. 
sec.  3228. 

Establish  grades : 

The  chief  inspector  shall,  before  the  first  day  of  September 
of  each  year,  establish  a  grade  for  all  kinds  of  grain  brought  or 
handled nn  the  state,  which  shall  be  known  as  "Kansas  grades," 
and  to  facilitate  this  object  he  shall  notify  the  board  of  trade 
in  the  state,  so  that  they  may  send  representatives  to  consult 
and  counsel  with  the  chief  inspector  in  estiiblishing  the  grades; 
and  the  grades  so  established  shall  be  published  in  three  daily 
papers  in  the  state  each  day  for  the  period  of  one  week.  Id. 
sec.  3229. 

Samples  : 

It  shall  be  the  duty  of  the  chief  inspector  of  grain  to  furnish 
any  public  elevator  or  warehouse  in  this  state  standard  samples 
of  the  several  grades  as  established  by  official  inspection,  when 
requested  so  to  do  by  the  proprietor,  lessee  or  manager  thereof, 
at  the  actual  cost  of  such  samples.     Id.  sec.  3230. 

Fees — Report : 

The  fees  for  inspecting,  weighing  and  sampling  of  grain  by 
the  officers  of  the  state  grain  inspection  department  shall  be 
as  follows:  For  inspecting  and  sampling  each  caiload,  forty 
cents;  for  inspecting  out  of  ele\'ators,  thirty-five  cents  per  car; 
for  weighing,  twenty-five  cents  per  car;  for  reinspecting,  where 
the  former  inspection  and  grade  are  sustained,  fifty  cents  per 
car;  and  in  all  cases  where  samples  of  ca riots  of  grain  inspected 
are  demanded,  the  charge  for  each  sample  shall  be  twenty-five 


KANSAS.  285 

cents.  Any  and  every  person,  firm,  company,  corporation  or 
association  for  whom  grain  shall  be  inspected,  weigluMJ  or  sam- 
pled by  any  of  the  officers  of  said  department  shall  on  or  before 
the  tenth  day  of  each  month,  file  a  sworn  and  detailed  report 
with  the  auditor  of  state,  setting  forth  the  number  of  cars  of 
grain  inspected  or  weighed  by  and  the  number  of  samples  of 
grain  received  from  the  officers  of  said  department  during  the 
preceding  month;  also  the  amount  of  money  paid  for  such 
services,  with  the  date  of  pjiyment,  and  the  name  of  the  person 
to  whom  paid.  And  every  person,  for  himself,  or  as  an  officer 
or  representative  of  any  such  firm,  company,  corporation,  or 
association,  who  shall  fail  or  neglect  to  comply  with  the  pro- 
visions of  this  section  shall  be  guilty  of  a  misdemeanor,  and 
upon  conviction  thereof  shall  be  fined  not  less  than  one  hun- 
dred dollars  nor  more  than  five  hundred  dollars.     Id.  sec.  3231. 

Charges  a  lieu : 

The  charge  for  inspection  and  weighing  of  grain  shall  be  and 
constitute  a  lien  on  the  grain  so  inspected  or  weighed,  and  when- 
ever such  grain  is  in  transit  the  said  charges  shall  be  treated  as 
advanced  charges,  shall  be  collected  and  paid  by  the  common 
carrier  in  whose  possession  the  same  is  at  the  time  of  such  in- 
spection or  weighing.     Id.  sec.  3232. 

Report : 

The  chief  inspector  of  grain  shall,  on  or  before  the  tenth  day 
of  each  month,  file  with  the  auditor  of  state  a  full  and  detailed 
report,  under  oath,  of  the  work  done  in  his  department  for  the 
preceding  month,  setting  forth  the  number  of  cars  of  grain  in- 
spected and  weighed,  and  by  whom,  the  number  of  samples 
furnished,  the  amount  of  revenue  collected  by  himself  and  the 
assistant  inspectors  and  weighmasters ;  and  the  chief  inspector 
shall  at  the  time  of  filing  his  report  with  the  auditor  of  state, 
pay  into  the  state  treasury  all  money  received  as  fees  for  the 
inspecting,  weighing  or  sampling  of  grain  for  the  preceding 
month,  which  money  shall  be  credited  to  the  general  fund. 
Id.  sec.  3233. 

Assistants— Salaries— Employees : 

In  every  city  or  at  every  railroad  terminal  in  the  state  where 


236  KANSAS    LAWS. 

more  than  one  assistant  inspector  is  employed,  the  chief  in- 
spector shall  designate  one  of  the  assistant  inspectors,  to  be 
known  as  first  assistant  inspector,  whose  duty  it  shall  be  to 
make  and  compile  report  of  his  respective  jurisdiction,  and 
who  shall  collect  the  reports  of  the  other  assistants  and  forward 
the  same  to  the  chief  inspector.  The  chief  inspector  shall  keep 
his  office  and  place  of  business  in  the  cit}^  of  Kansas  City,  Kan- 
sas, and  shall  receive  an  annual  salary  of  fifteen  hundred  dollars 
in  monthly  payments  of  one  hundred  and  twenty-five  dollars 
each,  and  shall  be  allowed  all  actual  and  necessary  travelling 
expenses  paid  in  cash  while  attending  to  official  duties;  said 
salary  and  expenses  to  be  paid  said  chief  inspector  upon  sworn 
vouchers,  properly  itemized,  and  audited  by  the  state  auditor 
the  same  as  other  vouchers,  and  warrants  drawn  upon  the  state 
treasurer  for  the  payment  thereof;  and  the  assistant  inspectors 
shall  each  receive  a  salary  of  eighty-five  dollars  per  month; 
and  the  weighmasters,  who  are  not  inspectors,  shall  each  re- 
ceive a  salary  of  sixty-five  dollars  per  month ;  and  the  employees 
known  in  said  department  as  "helpers''  shall  each  receive  a 
salary  of  sixty  dollars  per  month;  all  said  salaries  to  be  paid  in 
the  same  manner  as  the  salary  of  the  chief  inspector;  and  all 
other  employees  of  said  department  shall  receive  their  salaries 
in  the  same  manner  as  provided  for  the  payment  of  the  salary 
of  the  chief  inspector:  Provided,  hoivever,  That  if  at  any  place 
where  state  inspection  has  been  or  may  hereafter  be  established 
the  total  revenue  obtained  is  less  than  the  salary  paid  to  an 
assistant  inspector,  the  chief  inspector  may  abolish  such  branch 
of  the  service,  or  at  his  discretion  arrange  with  the  officer  in 
charge  to  accept  as  full  compensation  for  his  service  an  amount 
equal  to  the  whole  revenue  obtained  at  such  place.     Id.  sec.  3234. 

Penalties : 

Any  duly  authorized  chief  inspector,  assistant  inspector  or 
weighmaster  of  grain  under  this  act  who  shall  l3e  guilty  of  neg- 
lect of  duty,  or  who  shall  knowingly  or  carelessly  inspect,  grade 
or  weigh  any  grain  improperly,  or  who  shall  accept  any  money 
or  other  valuable  consideration,  directly  or  indirectly,  for  any 
neglect  of  duty  as  such  grain  inspector,  assistant  inspector,  or 
weighmaster,  shall  be  deemed  guilty  of  a  misdemeanor,  and  on 


KA.N8AS.  237 

conviction  shall  be  fined  in  the  sum  not  less  than  five  hundred 
dollars  nor  more  than  one  thousand  dollars,  or  shall  be  im- 
prisoned in  the  county  jail  not  less  than  six  months  nor  more 
than  twelve  months,  or  both  such  fine  and  imprisonment,  in 
the  discretion  of  the  court,  and  upon  conviction  of  any  such 
offense,  such  chief  inspector,  assistant  inspector  or  weigh- 
master  shall  forfeit  his  office.     Id.  sec.  3235. 

Only  qualified  inspectors  to  act : 

The  inspection  or  grading  of  grain  in  this  state,  whether  into 
or  out  of  warehouses,  elevators,  or  in  cars,  barges,  wagons,  or 
sacks,  arriving  at  or  shipped  from  points  where  state  grain 
inspection  is  established,  must  be  performed  by  such  persons 
as  may  be  duly  appointed,  sworn,  and  have  given  bond  under 
this  act;  and  any  person  who  shall  assume  to  act  as  inspector 
or  weigher  of  grain,  who  has  not  first  been  appointed  and  qual- 
ified in  accordance  with  the  provisions  of  this  act,  shall  be  guilty 
of  a  misdemeanor,  and  upon  conviction  thereof  shall  be  pun- 
ished by  a  fine  of  not  less  than  one  hundred  dollars  nor  more 
than  five  hundred  dollars,  or  imprisoned  in  the  county  jail  for 
not  less  than  three  months  nor  more  than  six  months,  or  both 
such  fine  and  imprisonment,  at  the  discretion  of  the  court,  for 
every  such  offense  so  committed.     Id.  sec.  3236. 

Exclusive  control : 

The  chief  inspector  of  grain  and  assistant  inspectors  and 
weighmasters  shall  have  exclusive  control  of  the  weigliing  and 
inspecting  of  grain  in  all  public  warehouses  and  all  places  where 
grain  is  weighed  or  inspected  under  this  act,  for  the  purpose  of 
inspection  of  scales,  and  the  action  and  certificates  of  such  in- 
spectors and  weighmasters  shall  be  conclusive  upon  all  parties 
interested.     Id.  sec.  3237. 

Bribery : 

Any  person,  or  any  representative  of  a  firm,  trust,  corporation 
or  association  who  shall  bribe  or  offer  to  bribe  any  of  the  officers 
created  under  this  act  shall  be  deemed  guilty  of  a  felony,  and 
upon  conviction  shall  be  punished  by  confinement  at  hard  labor 
in  the  penitentiary  for  a  term  not  exceeding  seven  years.  Id. 
sec.  3238. 


238  KANSAS   LAWS. 

Decision  final : 

The  decision  or  any  of  the  assistant  inspectors  as  to  the  grade 
of  grain  shall  be  final  and  binding  on  all  parties,  unless  an  ap- 
peal is  taken  from  such  decision  as  hereinafter  provided.  Id. 
sec.  3239. 

Appejils : 

In  case  any  owner,  consignee  or  shipper  of  grain,  or  any  ware- 
house manager,  shall  be  aggrieved  by  the  decision  of  any  as- 
sistant inspector,  an  appeal  may  be  taken  to  a  standing  com- 
mittee of  three,  which  the  chief  inspector  shall  appoint  at  every 
point  where  state  inspection  may  be  established.  Said  com- 
mittee shall  consist  of  experienced  grainmen,  and  their  decision 
shall  be  final  in  the  controversy:  Provided,  That  the  party  ap- 
pealing shall  pay  said  committee  a  sum  not  to  exceed  three 
dollars  per  case  before  said  appeal  shall  be  entertained,  and 
in  case  said  appeal  is  not  sustained  the  said  three  dollars  so 
deposited  shall  be  full  compensation  for  such  arbitration.  In 
the  event  of  the  appeal  being  sustained,  the  three  dollars  so 
deposited  shall  be  returned  to  the  party  appealing,  and  the 
arbitration  committee  shall  receive  three  dollars  in  full  for 
their  services  from  the  state  inspection  department.  Id.  sec. 
3240. 

SelUng  grain  by  sample  : 

Nothing  in  this  act  shall  be  construed  so  as  to  prevent  any 
person  from  selling  grain  by  sample,  regardless  of  grade;  but 
the  provisions  of  this  act  shall  not  change  the  liabilities  of  the 
warehouseman  on  grain  now  in  store,  nor  the  inspection  thereof, 
but  said  inspection  shall  be  had  under  the  same  system  under 
which  it  was  received  into  store.     Id.  sec.  3241. 

Attorney  : 

The  attorney  general  of  the  state  of  Kansas  shall  be  ex  officio 
attorney  for  the  chief  inspector,  and  shall  give  him  such  counsel 
and  advice  as  he  may  from  time  to  time  require,  and  said  at- 
torney general  shall  institute  and  prosecute  all  suits  which 
said  chief  inspector  may  deem  expedient  and  proper  to  insti- 
tute; and  he  shall  render  to  said  chief  inspector  all  counsel. 


KANSAS.  239 

advice  and  assistance  necessary  to  carry  out  the  provisions  of 
this  act,  according  to  the  true  meaning  and  intent  thereof.  In 
all  criminal  prosecutions  against  a  warehouseman  for  a  viola- 
tion of  any  of  the  provisions  of  this  act,  it  shall  be  the  duty  of 
the  county  attorney  of  the  county  in  which  such  prosecution 
is  brought  to  prosecute  the  same  to  a  final  issue.     Id.  sec.  3242. 

Repeal  : 

Be  it  further  enacted,  that  sections  16  to  32  (both  inclusive) 
and  sections  35  to  42  (both  inclusive)  of  chapter  248  of  the 
Session  Laws  of  1891,  and  all  ticts  and  parts  of  acts  and  all  laws 
inconsistent  with  the  provisions  of  this  act,  are  hereby  repealed. 
An  Act  to  regulate  warehouses,  the  ins{)ection,  grading,  weigh- 
ing and  handling  of  grain,  and  the  providing  for  the  appoint- 
ment of  a  state  grain  inspector.     Id.  sec.  3243. 

Public  warehouses  : 

That  all  elevators  or  warehouses  located  in  this  state  in  which 
grain  is  stored  in  bulk,  and  in  which  the  grain  of  different  owners 
is  mixed  together,  or  in  which  grain  is  stored  in  such  a  manner 
that  the  identity  of  different  lots  or  parcels  cannot  be  accurately 
preserved,  and  doing  business  for  a  compensation,  and  having 
capacities  of  less  than  seventy-five  thousand  bushels  each,  are 
hereby  declared  public  warehouses.     Id.  sec.  3244. 

Above  section  construed : 

Grain  deposited  under  provisions  of  this  chapter  does  not 
become  property  of  warehouseman.  The  title  is  in  the  holders 
of  the  respective  warehouse  receipts.  Bryan  v.  Congdon,  54 
Kan.  109. 

Procure  license  : 

That  the  proprietor,  lessee  or  manager  of  any  public  ware- 
house shall  be  required,  before  transacting  any  business,  to 
procure  from  the  regular  chartered  and  acting  board  of  trade 
in  the  nearest  city  of  the  first  or  second  class,  as  the  case  may 
be,  a  license  permitting  such  proprietor,  lessee  or  manager  to 
transact  business  as  a  public  warehouseman  under  the  laws  of 
this  state,  which  license  shall  be  issued  by  said  board  of  trade 
upon  written  application  therefor;  and  said  application  shall 


240  KANSAS    LAWS. 

set  forth  the  name  of  such  warehouse,  and  the  individual  name 
of  each  person  interested  as  owner  or  principal  in  the  man- 
agement of  the  same;  or  if  the  warehouse  be  owned  or  man- 
aged by  a  corporation,  the  names  of  the  president  and  secretary 
shall  be  stated,  and  said  license  shall  give  authority  to  carry  on 
and  conduct  the  business  of  a  public  warehouse  in  accordance 
with  the  laws  of  the  state,  and  shall  be  revocable  by  the  board 
of  trade  issuing  the  same  upon  a  summary  proceeding  before 
said  board,  upon  complaint  of  any  person  in  wTiting  setting 
forth  the  particular  violation  of  law;  satisfactory  proof  to  be 
taken  in  such  manner  as  said  board  may  direct,  having  first 
been  made  of  such  violation.     Id.  sec.  3245. 

Above  section  construed : 

In  a  proceeding  under  the  above  statute  to  restrain  an  alleged 
improper  exercise  of  power  thereunder,  the  state  must  be  party 
plaintiff.     Jones  v.  Board  of  Trade,  52  Kan.  95. 

File  bond : 

Any  person  receiving  a  license  as  herein  provided  shall  file 
immediately  with  the  secretary  of  state  a  bond  to  the  state  of 
Kansas  for  the  benefit  of  all  persons  interested,  with  good  and 
sufficient  sureties  approved  by  said  board  of  trade,  in  the  penal 
sum  of  not  less  than  ten  thousand  dollars  nor  more  than  fifty 
thousand  dofiars,  in  the  discretion  of  the  board  of  trade  issuing 
such  hcense,  conditioned  for  the  faithful  performance  of  his 
duty  as  a  public  warehouseman  and  his  full  and  unreserved 
compliance  with  all  laws  of  this  state  in  relation  thereto.  A 
fee  of  two  dollars  for  the  issuance  of  each  license  and  filing  of 
said  bond  shall  be  paid  to  the  secretary  of  state  by  the  person 
obtaining  said  license  and  filing  said  bond :  Provided,  That  when 
any  person  or  corporation  procures  a  license  for  more  than  one 
warehouse  in  any  one  county  in  the  state,  no  more  than  one 
bond  need  be  given.     Id.  sec.  3246. 

Penalty  : 

Any  person  who  shall  transact  the  business  of  a  public  ware- 
houseman without  first  procuring  a  license  and  filing  said  bond 
as  herein  provided,  or  who  shall  continue  to  transact  any  such 


KANSAS.  241 

business  after  such  license  has  been  revoked  (save  only  that  he 
be  permitted  to  deliver  property  previously  stored  in  such 
warehouse),  shall  on  conviction  thereof  be  fined  in  a  sum  not 
less  than  one  hundrcnl  dollars  nor  more  than  five  hundred  dol- 
lars for  each  and  every  day  such  business  is  carried  on  in  such 
manner;  and  the  board  of  trade  having  such  warehouse  under 
its  supervision  may  refuse  to  renew  any  license  or  grant  a  new 
one  to  any  person  whose  license  has  been  revoked,  within  one 
year  from  the  time  the  same  was  revoked.     Id.  sec.  3247. 

Receive  for  storage  : 

It  shall  be  the  duty  of  every  public  warehouseman  to  receive 
for  storage  any  grain,  dry  and  suitable  for  warehousing,  that 
may  be  tendered  to  him  in  the  usual  manner  in  which  ware- 
houses are  accustomed  to  receive  the  same  in  the  ordinary  and 
usual  course  of  business,  not  making  any  discrimination  be- 
tween the  persons  desiring  to  avail  themselves  of  warehouse 
facilities.  Such  grain  to  be  in  all  cases  inspected  and  graded 
by  a  duly  authorized  inspector,  but  to  be  stored  with  grain  of  a 
similar  grade ;  but  if  the  owner  or  consignee  so  requests,  and  the 
warehouseman  consents  thereto,  his  grain  of  the  same  grade 
may  be  kept  in  a  bin  by  itself  apart  from  that  of  other  owners, 
which  bin  shall  thereupon  be  marked  and  known  as  a  special 
bin.  If  a  warehouse  receipt  be  issued  for  grains  so  kept  separate, 
it  shall  state  on  its  face  it  is  a  special  bin,  and  shall  state  the 
number  of  such  bin;  and  all  grain  delivered  from  such  ware- 
house shall  be  inspected  on  its  delivery  by  a  duly  authorized 
inspector  of  grain.  Nothing  in  this  section  shall  be  construed 
so  as  to  require  the  receipt  of  any  kind  of  grain  into  a  ware- 
house in  which  there  is  not  sufficient  room  to  accommodate  or 
store  it  properly,  or  in  cases  where  such  warehouse  is  necessarily 
closed.  The  charge  for  inspection,  upon  receipt  and  delivery, 
shall  be  paid  by  the  warehouseman,  and  may  be  added  to  the 
charge  of  the  storage.  The  licensing  board  of  trade  may  re- 
cover such  charges  of  the  warehouseman  by  an  appropriate  ac- 
tion in  its  name.     Id.  sec.  3248. 

Warehouse  receipt : 

Upon  the  application  of  the  owner  or  consignee  of  grain 
16 


242  KANSAS   LAAVS. 

stored  in  a  public  warehouse,  the  same  being  accompanied  with 
evidence  that  all  transportation  or  other  charges  which  may 
be  a  lien  upon  the  grain,  including  the  charges  for  freight,  in- 
spection and  weighing,  have  been  paid,  the  warehouseman  shall 
issue  to  the  person  entitled  to  receive  it,  a  warehouse  receipt 
therefor,  subject  to  the  order  of  the  owner  of  consignee,  which 
receipt  shall  bear  date  corresponding  with  the  receipt  of  the 
grain  in  store,  and  shall  state  upon  its  face  the  quantity  and 
inspected  grade  of  the  grain,  and  that  the  grade  mentioned  on 
it  has  been  received  into  store  to  be  stored  with  grain  of  the 
same  grade  by  inspection,  and  that  the  grain  represented  thereby 
is  deliverable  upon  the  return  of  the  receipt,  properly  indorsed 
by  the  person  to  whose  order  it  was  issued,  and  the  payment  of 
proper  charges  for  storage.     Id.  sec.  3249. 

Receipts  iiu inhered  : 

All  warehouse  receipts  for  grain  issued  by  the  same  warehouse 
shall  be  consecutively  numbered,  and  no  two  receipts  bearing 
the  same  number  shall  be  issued  from  the  same  warehouse  dur- 
ing any  one  year,  except  in  the  case  of  a  lost  or  destroyed  re- 
ceipt, in  which  case  the  new  receipt  shall  bear  the  same  date 
and  number  as  the  original,  and  shall  be  plainly  marked  on  its 
face,  "Duplicate."  If  the  grain  was  received  from  railroad 
cars,  the  number  of  each  car  shall  be  stated  on  the  receipt,  with 
the  amount  it  contained;  if  from  barges  or  other  vessels,  the 
name  of  such  craft;  if  from  team  or  other  means,  the  manner 
of  its  receipt  shall  be  stated  on  its  face.     Id.  sec.  3250. 

Cancellation  of  receipt : 

Upon  the  delivery  of  grain  from  store  upon  any  receipt,  such 
receipt  shall  be  jDlainly  marked  across  its  face  the  word,  "Can- 
celled," with  name  of  the  person  cancelling  the  same,  and  there- 
after be  void,  and  sliall  not  again  be  put  in  circulation,  nor  shall 
grain  l^e  delivered  twice  upon  the  same  receipt.  No  warehouse 
receipt  shall  be  issued  except  upon  an  actual  delivery  of  grain 
into  store  in  the  warehouse  from  which  it  purports  to  be  issued, 
and  which  is  to  be  represented  by  the  receipt.  Nor  shall  any 
j-eceipt  be  issued  for  a  greater  quantity  of  grain  than  was  con- 
tained in  the  lot  or  parcel  so  received,  nor  shall  more  than  one 


KANSAS.  243 

receipt  be  issued  for  the  same  lot  of  grain,  except  in  cases  where 
a  receipt  for  a  part  of  a  lot  is  desired,  and  then  the  aggregatetl 
receipt  for  a  particular  lot  shall  cover  that  lot  and  no  more. 
In  cases  where  a  part  of  the  grain  represented  by  the  recei^jt  is 
delivered  out  of  the  store  and  the  remainder  is  left,  a  new  re- 
ceipt may  be  issued  for  such  remainder,  but  the  new  receipt 
shall  bear  the  same  date  as  the  original,  and  shall  state  on  its 
face  that  it  is  balance  of  receipt  of  the  original  number;  and  the 
receipt  upon  which  a  part  has  been  delivered  shall  be  cancelled 
in  the  same  manner  as  if  it  had  all  been  delivered.  In  case  it 
be  desirable  to  divide  one  receipt  into  two  or  more,  or  in  case 
it  be  desirable  to  consolidate  two  or  more  receipts  into  one,  and 
the  warehouseman  consents  thereto,  the  original  receipt  or  re- 
ceipts shall  be  cancelled  the  same  as  if  the  grain  had  been  de- 
livered from  the  store,  and  the  new  receipt  or  receipts  shall 
express  on  their  face  that  they  are  a  part  of  another  receipt  or 
consolidation  of  other  receipts,  as  the  case  may  be,  and  the 
number  of  the  original  receipts  shall  also  appear  on  the  new 
ones  issued  as  explanatory  of  the  change;  but  no  consolidation 
of  receipts  differing  more  than  ten  days  in  date  shall  be  per- 
mitted. All  new  receipts  issued  for  old  ones  cancelled  as  herein 
provided  shall  bear  the  same  date  as  those  originally  issued, 
as  near  as  may  be.     Id.  sec.  3251. 

Not  alter  receipt : 

No  warehouseman  in  this  state  shall  insert  in  any  receipt 
issued  by  him  any  language  in  anywise  limiting  or  modifying 
his  liabilities  or  responsibility  as  imposed  by  the  laws  of  this 
state.     Id.  sec.  3252. 

Property  delivered  ou  return  of : 

On  the  return  of  any  warehouse  receipt  properly  indorsed, 
and  the  tender  of  all  proper  charges  ui)on  the  property  repre- 
sented by  it,  such  property  shall  be  immediately  delivered  to 
the  holder  of  such  receipt,  and  shall  not  be  subject  to  any 
further  charges  for  storage  after  demand  for  such  delivery  shall 
have  been  made;  and  the  property  represented  by  such  receipt 
shall  be  delivered  within  twenty-foui-  hours  after  such  demand 
shall  have  been  made  and  the  cars  or  vessels  for  transporta- 


244  KANSAS   LAWS. 

tion  of  same  shall  have  been  furnished.  The  warehouseman 
in  default  shall  be  liable  to  the  owner  of  such  receipt  for  dam- 
ages occasioned  by  such  default  in  the  sum  of  one  cent  per 
busliel,  and  in  addition  thereto  one  cent  per  bushel  for  each 
and  every  day  of  such  neglect  or  refusal  to  deliver:  Provided, 
No  warehouseman  siudl  be  held  to  be  in  default  in  delivering 
if  the  property  is  delivered  in  the  order  demanded  and  as  rapidly 
as  duo  diligence,  care  and  prudence  will  justify;  but  no  grain 
shall  be  delivered  from  store  or  warehouse  until  the  receipt 
for  same  shall  ha^•e  been  actually  returned.  Id.  sec.  3253. 

Fiiruish  stateiueiit : 

It  shall  be  the  duty  of  every  owner,  lessee  and  manager  of 
every  public  warehouse  in  this  state  to  furnish  in  writing  ,  under 
oath,  at  such  times  as  the  board  of  trade  issuing  his  license  shall 
require  and  prescribe,  a  statement  concerning  the  condition  and 
management  of  the  business  as  such  warehouseman.  Id. 
sec.  3254. 

Statement  to  be  posted  up  : 

The  warehouseman  of  every  public  warehouse  located  in  this 
state  shall,  on  or  before  every  Tuesday  morning  of  each  week, 
cause  to  be  made  out  and  shall  keep  posted  up  in  business  office 
of  his  warehouse,  in  a  conspicuous  place,  a  statement  of  the 
amount  of  each  kind  and  grade  of  grain  in  store  at  his  ware- 
house at  the  close  of  business  on  the  previous  Saturday,  and 
shall  on  each  Tuesday  morning  render  a  similar  statement 
made  under  oath  by  one  of  the  principal  owners  or  operators, 
or  by  the  bookkeeper  thereof  having  personal  knowledge  of 
the  facts,  to  the  seci'etary  of  the  board  of  trade  issuing  the 
license  of  said  warehouse;  he  shall  also  be  required  to  furnish 
daily  to  said  secretary  a  correct  statement  of  the  amount  of 
each  kind  and  grade  of  grain  received  in  store  in  such  ware- 
house on  the  previous  day  for  which  receipts  have  been  issued, 
also  the  amount  of  each  kind  and  grade  of  grain  delivered  or 
shipped  b}^  such  warehouseman  during  the  previous  day  for 
which  receipts  have  been  returned,  and  what  warehouse  re- 
ceipts upon  which  the  grain  has  been  delivered  on  such  day 
have  been  cancelled,  giving  the  number  of  each  receipt,  and  the 


KANSAS.  245 

amount,  kind  and  gnido  of  o;rain  i-ccoivod  and  sh'ippcd  up(jn 
each;  also,  how  imich  gi-ain,  if  ;in\-,  was  so  deHvcivd  or  shipped, 
and  the  kind  and  ^rade  of  it  for  which  warehouse  receipts  had 
not  been  issued;  the  aggregate  of  such  reported  cancelhition 
and  dehvery  of  unreceipted  grain  corresponding  in  amount, 
kind  and  grade  with  the  amount  so  reported  delivei-ed  or  shipped. 
He  shall  also  at  the  same  time  report  what  receipts,  if  ;in\-,  have 
been  cancelled  and  new  ones  issued  in  their  stead,  as  h(>rein 
provided  for;  and  the  warehouseman  making  such  statement 
shall,  in  adcUtion,  furnish  the  secretary  of  said  board  of  trade 
any  further  information  regarding  the  receipts  issued  or  can- 
celled that  may  be  necessary  to  enable  him  to  keep  a  full  and 
correct  record  of  all  receipts  issued  and  cancelled,  and  of  grain 
received  and  delivered.     Id.  sec.  3255. 

Schedule  of  rates : 

Every  warehouseman  of  public  warehouses  located  in  tliis 
state  shall  be  required,  during  the  first  week  in  September  of 
each  year,  to  publish  in  one  or  more  of  the  newspapers  (daily, 
if  there  is  such)  published  in  the  city  or  village  in  which  such 
warehouse  is  situated,  a  table  or  schedule  of  rates  for  the  storage 
of  grain  in  his  warehouse  during  the  ensuing  year,  which  rates 
shall  not  be  increased  during  such  year.  The  maximum  charge 
for  storage  and  handling  of  grain,  including  the  cost  of  receiving 
and  delivering,  shall  be,  for  the  first  fifteen  days  or  part  thereof, 
one  cent  per  busliel;  and  for  each  fifteen  days  or  part  thereof 
after  the  first  fifteen  days,  one  half  cent  per  bushel;  and  for 
continuous  storage  between  the  fifteenth  day  of  November  and 
fifteenth  day  of  May  following,  no  more  than  four  cents  a  bushel. 
Id.  sec.  3256. 

Be  permitted  to  dry  or  clean — Damages  : 

Any  public  warehouseman  may,  on  the  written  request  of  the 
owner  of  any  grain  stored  in  a  private  bin,  upon  the  surrender 
of  the  receipt  therefor,  be  permitted  to  dry,  clean,  or  otherwise 
change  the  condition  or  value  of  any  such  lot  of  grain ;  but  in 
such  case  it  shall  only  be  delivered  as  such  separate  lot,  without 
reference  to  the  grade  it  may  be  made  by  such  process  of  drying 
or  cleaning.     Nothing  in  this  section,  however,  shall  prevent 


246  KANSAS    LAWS. 

any  warehouseman  from  removing  grain  within  liis  warehouse, 
for  its  preservation  or  safe-keeping.  Xo  public  warehouseman 
shall  be  held  responsible  for  any  loss  or  damage  to  property  by 
fire  while  in  his  custody,  provided  reasonable  care  and  ^■igilance 
be  exercised  to  protect  and  preserve  the  same;  nor  shall  he  be 
held  Uable  for  damage  to  grain  by  heating,  if  it  can  be  shown 
that  he  has  exercised  proper  care  in  handling  and  storing  the 
same,  and  that  such  heat  or  damage  was  the  result  of  causes 
beyond  his  control.  In  order  that  no  injustice  may  result  to 
the  holder  of  grain  in  any  public  warehouse,  it  shall  be  the  duty 
of  such  warehouseman  to  dispose  of,  by  delivery  or  shipping  in 
the  ordinar}^  and  legal  manner  of  so  delivering,  that  grain  of 
any  particular  grade  which  was  first  received  by  him,  or  which 
has  been  for  the  longest  time  in  store  in  his  warehouse;  and 
unless  the  public  notice  hereinafter  provided  has  been  given, 
that  some  portion  of  the  grain  in  his  warehouse'is  out  of  condi- 
tion, or  is  becoming  so,  such  warehouseman  shall  deliver  grain, 
of  quality  equal  to  that  delivered  to  him,  on  all  receipts  as  pre- 
sented. In  case,  however,  any  warehouseman  shall  discover 
that  any  portion  of  the  grain  in  his  warehouse  is  out  of  condi- 
tion, or  becoming  so,  and  it  is  not  in  his  power  to  preserve  the 
same,  he  shall  immediately  give  personal  notice  to  the  owner, 
if  known,  and  if  not  known  by  public  notice  by  advertising  in 
a  daily  newspaper  in  the  city  in  which  such  warehouse  is  situ- 
ated, and  by  posting  a  notice  in  the  most  public  place  (for  such 
purpose)  in  such  city,  of  its  actual  condition,  as  near  as  he  can 
ascertain.  It  shall  state  in  such  notice  the  kind  and  grade  of 
the  grain,  and  the  bin  in  which  it  was  stored,  and  shall  also  state 
in  such  notice  the  receipts  outstanding  upon  which  such  grain 
will  be  delivered,  giving  the  numbers,  amount  and  date  of  each, 
which  receipts  shall  be  those  of  the  oldest  dates  and  numbers 
then  in  circulation  or  uncancelled,  the  grain  represented  by 
which  has  not  previously  been  declared  or  receipted  for  as  out 
of  condition;  or  if  the  grain  longest  in  store  has  not  been  re- 
ceipted for,  he  shall  so  state,  and  shall  give  the  name  of  the 
party  for  whom  such  grain  was  stored,  the  date  it  Avas  received, 
anrl  the  amount  of  it ;  and  the  enumeration  of  receipts  and  the 
identification  of  grain  so  discredited  shall  embrace  as  near  as 


KANSAS.  247 

may  be  as  great  a  quantity  of  grain  as  is  contained  in  such  bins; 
and  such  grain  shall  be  delivered  upon  return  and  cancellation 
of  the  receipts,  and  the  unreceiptcMJ  grain  upon  the  request  of 
the  owner  or  person  in  charge  thereof.  Nothing  herein  con- 
tained shall  be  held  to  relieve  the  said  warehouseman  from  ex- 
ercising proper  care  and  vigilance  in  preserving  such  grain  after 
such  publication  of  its  condition,  but  such  grain  shall  be  kei)t 
separate  and  apart  from  all  dii'ect  contact  with  other  grain, 
and  shall  not  be  mixed  with  other  grain  while  in  store  in  such 
warehouse.  Any  warehouseman  guilty  of  any  act  or  neglect, 
the  effect  of  which  is  to  depreciate  property  stored  in  the  ware- 
house under  his  control,  shall  be  held  responsible  therefor  to  the 
person  damaged  thereby,  and  the  l)ond  of  such  warehouseman 
shall  be  held  for  all  damages  occasioned  thereby.  Nothing  in 
this  section  shall  be  construed  so  as  to  permit  any  warehouse- 
man to  deliver  any  grain  stored  in  a  special  bin  or  by  itself  as 
provided  in  this  act  to  any  but  the  owners  of  the  lot,  whether 
the  same  be  represented  by  a  warehouse  receipt  or  otherwise. 
In  case  the  grain  declared  out  of  condition  as  herein  provided 
for  shall  not  be  removed  from  store  by  owner  thereof  within 
thirty  days  from  the  date  of  the  notice  of  its  being  out  of  con- 
dition, it  shall  be  lawful  for  the  warehouseman  where  the  grain 
is  stored  to  sell  the  same  at  public  auction  for  account  of  said 
owner  by  giving  ten  days'  public  notice  by  advertisement  in 
a  newspaper  (daily,  if  there  be  such)  published  in  the  city  or 
town  where  such  warehouse  is  located.     Id.  sec.  3257. 

Exaniinatiou  of  : 

All  persons  owning  property,  or  who  may  be  interested  in 
the  same,  in  any  public  warehouse,  and  all  duly  authorized  in- 
spectors of  such  property,  shall  at  all  times  during  the  ordinary 
business  hours  be  at  full  liberty  to  examine  any  and  all  prop- 
erty stored  in  any  public  warehouse  in  this  state,  and  all  proper 
facilities  shall  be  extended  to  such  person  by  the  warehouse- 
man, his  agents  and  servants,  for  an  examination,  and  all  parts 
of  the  public  warehouse  shall  be  free  for  the  inspection  and 
examination  of  any  person  interested  in  property  stored  therein, 
or  of  any  authorized  inspector  of  such  property;  and  all  scales 
used  for  weighing  of  property  in  public  warehouses  shall  be 


248  KANSAS   LAWS. 

subject  to  the  examination  and  test  by  any  duly  authorized 
inspector,  weighmaster  or  sealer  of  weights  and  measures  at  any 
time  when  required  by  any  person  or  persons,  agent  or  agents, 
whose  property  has  been  or  is  to  be  weighed  on  such  scales,  and 
the  fee  for  said  test  shall  be  paid  by  the  parties  making  such 
demand  if  the  scales  are  found  correct,  and  by  the  warehouse 
proprietors  if  found  incorrect.  Any  warehouseman  who  may 
be  guilty  of  continuing  to  use  scales  found  to  be  in  an  imperfect 
or  incorrect  condition  by  such  examination  and  test,  until  the 
same  shall  have  been  pronounced  correct  and  projDerly  sealed, 
shall  be  hable  to  be  proceeded  against  as  hereinafter  provided. 
Id.  sec.  3258. 

In  case  of  dissatisfaction  : 

In  case  any  owner  or  consignee  of  grain  shall  be  dissatisfied 
with  the  inspection  of  any  lot  of  grain,  or  shall  from  any  cause 
desire  to  receive  his  property  without  it  passing  into  store,  he 
shall  be  at  liberty  to  have  the  same  withheld  from  going  into  the 
public  warehouse  (whether  the  property  may  have  been  pre- 
viously consigned  to  such  warehouse  or  not),  by  giving  notice  to 
the  person  or  corporation  in  whose  possession  it  may  be  at  the 
time  of  giving  such  notice;  and  such  grain  may  be  withheld 
from  going  into  store,  and  be  delivered  to  him  subject  only  to 
such  proper  charges  as  may  be  a  lien  upon  it  prior  to  such  notice ; 
the  grain  in  railroad  cars  to  be  removed  therefrom  by  such 
owner  or  consignee  within  twenty-four  hours  after  such  notice 
has  been  given  to  the  railroad  company  having  it  in  possession, 
provided,  such  railroad  company  place  the  same  in  a  proper 
and  convenient  place  for  unloading;  and  any  person  or  corpo- 
ration refusing  to  allow  such  owner  or  consignee  to  receive  his 
grain  shall  be  deemed  guilty  of  conversion,  and  shall  be  liable 
to  ])ay  such  owner  or  consignee  double  the  value  of  the  property 
so  converted.  Notice  that  such  grain  is  not  to  be  delivered 
into  store  may  also  be  given  to  the  proprietor  or  manager  of 
any  warehouse  into  which  it  would  otherwise  have  been  deliv- 
ered, and  if  after  such  notice  it  be  taken  into  store  in  such  ware- 
house, the  proprietor  or  manager  of  such  warehouse  shall  be 
hable  to  the  owner  of  such  grain  for  double  its  market  value. 
Id.  sec.  3259. 


KANSAS.  249 

Unlawful  : 

It  shall  be  unlawful  for  any  i)r()i)riotor,  lessee  or  manager  of 
any  public  ^^•a rehouse  to  enter  into  any  contract,  agreement, 
understanding  or  combination  with  any  railroad  company  or 
other  corporation,  or  with  any  individuals,  by  which  the  prop- 
erty of  any  joerson  is  to  be  delivered  to  any  public  warehouse 
for  storage,  or  for  any  purpose  contrary  to  the  directions  of  the 
owner,  his  agent  or  consignee.     Id.  sec.  3260. 

Bill  of  ladiii;^ — Shortage  : 

Each  railway  company  operating  a  railway  wholly  or  partly 
within  this  state  shall  be  required  to  give  to  any  person  deliv- 
ering grain,  seed  or  hay  in  bulk  or  in  sacks  to  such  company  for 
transportation,  at  any  station  entitled  to  track  scales  under 
this  act,  a  bill  of  lading,  in  duplicate,  which  bill  of  lading  shall 
state  the  exact  number  of  bushels  or  pounds  of  grain,  seed  or 
hay  so  delivered  to  such  railway  company,  by  whom  delivered 
and  to  whom  consigned;  and  thereafter  such  railway  company 
shall  be  responsible  to  the  consignee  named  in  said  bill  of  lading, 
or  to  his  heirs  or  assigns  for  the  full  amount  of  such  grain,  seed 
or  hay  so  delivered  to  such  railway  company,  until  it  shall  show 
that  it  has  delivered  the  whole  amount  of  such  grain,  seed  or 
hay  to  such  consignee  or  to  his  heirs  or  assigns:  Provided,  how- 
ever, That  if  the  shortage  on  any  car  of  grain,  seed  or  hay  shall 
not  exceed  one  fourth  of  one  per  cent  of  the  amount  of  grain, 
seed  or  hay  put  in  the  car  then  the  railway  company  shall  be 
deemed  to  have  delivered  the  whole  amount  of  grain,  seed  or 
hay  in  the  car.  And  in  any  action  hereafter  brought  against 
any  railway  company  for  or  on  account  of  any  failure  or  neglect 
to  deliver  any  such  grain,  seed  or  hay  to  the  consignee,  or  his 
heirs  or  assigns,  either  duplicate  of  such  bill  of  lading  shall  be 
conclusive  proof  of  the  amount  of  such  grain,  seed  or  hay  so 
received  by  such  railway  company.     Id.  sec.  5943. 


•2d0  KANSAS   DECISIONS. 

DECISIONS  AFFECTING  AVAREHOUSEMEN. 

B. 

Bailment — Universal  rule. 

It  is  the  universal  law  of  bailments  that  where  the  bailment 
is  for  the  benefit  of  both  parties,  the  bailee  is  required  to  exer- 
cise ordinary  care  and  is  liable  for  ordinary  negligence.  U.  P. 
Ry.  Co.  V.  Rollins,  5  Kan.  167;  L.  L.  &  G.  R.  R.  Co.  v.  Maris, 
16  Kan.  333. 

Duty  of  imrehousemaii  on  receipt  of  consignment — Specific  di- 
rections by  depositor. 

If  a  consignment  of  property  is  made  to  a  warehouseman, 
with  specific  directions  as  to  how  it  is  to  be  held  or  disposed  of, 
untler  ordinary  circumstances  the  warehouseman  must  either 
refuse  to  accept  the  consignment,  or  comply  in  substance  with 
the  instructions  of  the  consignor.  Kansas  Elevator  Co.  v.  Harris, 
6  Kan.  App.  89. 

Delivery — Must  deliver  within  a  reasonable  time  after  demand. 

In  an  action  against  a  warehouseman  for  conversion  of  grain 
stored  with  him,  it  was  shown  that  he  failed  to  deliver  the  same 
on  demand,  although  he  did  not  refuse  to  deliver  and,  in  fact, 
continually  promised  to  do  so.  It  was  urged  in  his  behalf  that 
he  had  not  refused  to  deliver,  in  this  connection  the  court  held 
that  a  person  cannot,  by  promising  to  perform  his  legal  duty 
and  failing  to  do  so,  avoid  liability.  And  that  the  defendant 
in  this  case  was  in  no  better  position  than  if  he  had  notified  the 
plaintifT  that  he  did  not  intend  to  comply  with  his  demand. 
Upon  demand  being  made  of  a  bailee,  he  must  make  delivery 
within  a  reasonable  time  thereafter.     Id. 

Bailee  cannot  dispute  bailors  title. 

A  bailee  cannot  set  up  title  in  himself  to  defeat  the  claim  of 
his  bailor.     Thompson  v.  Williams,  30  Kan.  114. 

Conversion — Evidence — Misjoinder  of  parties  and  of  causes  of 
action. 
The  several  parties  ])]aintiffs,  brought  a  joint  action  against 


KANSAS.  251 

the  defendant  warehouseman  and  also  made  defendant  the 
sheriff  who  had  attached  the  grain  deposited  in  the  ilefendant's 
warehouse  (in  an  action  brought  by  a  l)ank  against  the  ware- 
houseman), the  bank  being  also  made;  a  party  defendant.  Sub- 
sequent to  the  attachment,  the  warehouseman  issued  an  instru- 
ment to  the  several  plaintiffs  in  which  it  was  stated  that  the 
grain  held  for  them  did  not  belong  to  the  warehouseman  al- 
though it  had  been  attached  in  an  action  against  him,  it  being 
further  stated  in  such  instrument  that  the  warehouseman  there- 
by sold  to  the  several  plaintiffs  their  pro  rata  interest  in  the 
grain  remaining  in  the  wai-(;house.  It  appeareil  that  the  grain 
had  been  deposited  by  the  plaintiffs  at  different  times  and  in 
every  instance  but  one  the  contract  of  bailment  had  been  oral. 
The  defendant  demurred  on  the  ground  that  there  was  a  mis- 
joinder of  parties  and  also  a  misjoinder  of  causes  of  action.  A 
judgment  was  given  for  the  plaintiff  pursuant  to  very  conflict- 
ing findings  by  the  jury.  It  was  held  on  appeal,  that  the  find- 
ings indicate  that  the  wheat  was  deposited  for  bailment  and  not 
for  sale  and  therefore  the  plaintiffs  had  no  joint  cause  of  action 
and  that  the  joint  verdict  in  their  favor  could  not  be  upheld. 
Central  State  Bank  et  al.  v.  Walker  et  al.,  7  Kan.  App.  748. 

Board  of  trade — Right  of  inspection  of  grain. 

The  Kansas  City  Board  of  Trade  brought  an  action  praying 
that  an  injunction  be  granted  against  the  Argentine  Board  of 
Trade  and  its  officers,  to  restrain  them  from  licensing  inspec- 
tors of  grain.  It  alleged  that  there  were  two  warehouses 
in  the  vicinity  of  the  defendant  which  were  regularly  inspected 
by  deputy  inspectors  appointed  by  the  complainant.  It  was 
alleged  in  the  answer  that  the  defendant  was  duly  incorporated 
and  that  its  deputy  inspectors  were  appointed  in  compliance 
with  the  laws  of  the  state  and  the  rules  of  the  grain  inspectors, 
which  rules  the  complainant  was  and  had  been  continually 
violating.  The  defendant  prayed  that  the  petition  of  the  com- 
plainant be  denied  and  further  that  the  complainant  be  per- 
manently enjoined  from  collecting  or  attempting  to  collect  any 
fees  for  the  inspection  of  grain  in  the  vicinity  of  Argentine, 
and  from  violating  or  interfering  with  the  defendant's  exercise 
and  enjoyment  of  its  exclusive  rights  to  inspect  grain  in  its 


252  KANSAS   DECISIONS. 

immediate  vicinity.  The  reply  filed  by  the  complainant  denied 
the  a"\'ernients  of  the  answer  and  insisted  upon  its  right  to  in- 
spect grain  in  the  vicinity  of  Argentine.  The  case  was  sub- 
mitted to  the  court  on  the  pleadings,  except  that  the  plaintiff 
withdrew  all  demand  for  relief  prayed  for  in  its  petition.  The 
court  found  for  the  plaintiff  and  that  the  defendant  board  of 
trade  w^as  not  entitled  to  the  relief  jDrayed  for  in  its  answer,  and 
the  injunction  was  denied.  On  appeal  the  case  was  affirmed, 
the  court  holding  that  the  defendant  could  not  invoke  injunction 
unless  its  private  rights  were  being  invaded  by  the  j^laintifT, 
and  no  other  remedy  existed.  That  the  defendant  could  not 
assume  the  duties  and  responsibilities  of  the  state  and  the  public 
prosecutor  of  protecting  public  interests  and  securing  the  pun- 
ishment of  warehousemen  who  violated  the  provisions  of  the 
statute.  If  the  plaintiff  board  and  its  officers  were  violating 
the  law,  the  state  must  interpose  by  an  appropriate  proceeding 
to  prevent  the  unlawful  exercise  of  the  power.  Jones  v.  Board 
of  Trade  of  Kansas  City,  52  Kan.  95. 

H. 

Storage  charges — Tender  necessary — Replevin. 

Where  the  defendant  bailee  stated  to  a  third  party  that  he 
w^ould  not  deliver  the  property  bailed  even  to  his  bailor  upon 
payment  of  charges  due,  and  it  appeared  that  such  third  person 
was  acting  without  authority  conferred  upon  him  by  the  bailor 
when  he  made  an  offer  to  pay  the  charges,  it  was  held  that  this 
was  not  a  tender  such  as  is  required  before  action  of  replevin 
brought.     Brown  v.  Holmes,  21  Kan.  687. 

I. 

Commingling  of  goods — //  without  authority  constitutes  conver- 
sion. 

An  instruction  to  the  jury  that  if  they  found  that  the  con- 
tract of  the  parties  was  that  the  grain  of  the  plaintiff  was  to  be 
separately  binned  and  the  identical  grain  be  redelivered,  that 
a  mingling  of  the  grain  with  other  grain,  although  of  like  quality, 
constituted  a  conversion  for  which  the  warehouseman  was  liable, 
held  to  be  correct.  Kansas  Elevator  Co.  v.  Harris,  6  Kan.  App. 
89. 


KANSAS.  253 

M. 

Pledge — Bailee  has  no  right  to  pledge  to  secure  personal  indebt- 
edness. 

Where  a  bailee  is  in  possession  of  property  for  the  purpose 
only  of  bailment,  he  is  not  authorized  to  pledge  the  same  to 
secure  a  personal  debt  due  from  him.  Therefore,  the  owner 
has  the  right  to  recover  the  ])ossessi()n  of  the  property  so  pledged. 
In  order  to  acquire  title  to  property,  it  must  be  purchased  from 
one  who  is  the  owner  thereof  or  one  authorized  to  sell  the  same 
and  the  same  rule  applies  in  regard  to  pledge.  Branson  v. 
Heckler,  22  Kan.  610. 

Loss  by  fire — Not  liable  unless  negligence  be  shown. 

A  carrier  holding  goods  in  capacity  of  warehouseman  held  not 
responsible  for  loss  occasioned  by  fire  in  the  absence  of  negli- 
gence. L.  L.  &  G.  R.  R.  Co.  V.  Maris,  16  Kan.  333;  Union 
Pacific  Railroad  Co.  v.  Moyer,  40  Kan.  184;  Kansas  City,  Ft. 
Scott  &  M.  R.  R.  Co.  V.  Patten,  3  Kan.  App.  338. 

0. 

Measure  of  damages. 

Where  corn,  delivered  by  bailee  to  his  bailor,  is  of  inferior 
quality  to  that  deposited  and  the  bailor  accepts  the  same,  the 
measure  of  damages  is  the  difference  between  the  value  of  the 
corn  delivered  and  that  deposited.  Kansas  Elevator  Co.  v. 
Harris,  6  Kan.  App.  89. 

Warehouse  receipts — Evidence — When  parol  evidence  receivable. 

A  mere  receipt  may  be  contradicted  or  varied  by  parol  but 
if  it  is  more  than  that  and  constitutes  a  contract  of  bailment 
between  the  parties  it  cannot  be  varied  by  such  testimony. 
Thompson  v.  Williams,  30  Kan.  114. 

R. 

Bill  of  lading — What  exemptions  valid. 

While  a  provision  in  a  bill  of  lading,  or  contract  between  the 
shipper  and  carrier,  that  the  latter  will  not  be  liable  beyond  a 
certain  sum  expressed  therein,  may  be  valid,  to  limit  the  lia- 
bility of  the  carrier  as  an  insurer,  a  condition  of  this  character 


254  KANSAS   DECISIONS. 

which  seeks  to  cover  the  negUgence  of  the  carrier  is  void.  K.  C. 
St.  J.  &  C.  B.  R.  R.  Co.  V.  Simpson,  30  Kan.  645;  Railroad  v. 
Mayer,  40  Kan.  184. 

Bill  of  lading — EJfed  of  transfer. 

The  transfer  of  a  bill  of  lading  passes  title  to  the  property 
represented  thereby,  but  its  transfer  only  gives  with  it  such 
rights  as  the  party  in  possession  of  the  goods  could  transmit 
by  an  actual  delivery  of  the  goods  themselves.  Branson  v. 
Heckler,  22  Kan.  610. 

Same — Transfer. 

Property  may  be  transferred  by  assignment  of  the  bill  of 
lading  representing  same.  Means  v.  Bank  of  Randall,  146  U.  S. 
620;  Halsey  v.  Warden,  25  Kan.  128. 

Same — Railroad  liable  if  duplicate  bill  of  lading  issued. 

Where  a  railroad  company  issued  bills  of  lading  for  a  part  of 
the  consignment  and  also  issued  one  bill  of  lading  for  the  entire 
consignment  without  cancelling  those  first  issued,  and  one  of 
such  former  bills  of  lading  came  into  the  hands  of  a  third  person 
without  knowledge,  it  was  held  that  the  railroad  was  estopped 
to  deny  that  the  bill  of  lading  was  binding  and  that  it  was  liable 
thereon.  Wichita  Savings  Bank  v.  Atchison,  etc.,  R.  R.,  20  Kan. 
519. 


KENTUCKY.  255 


CHAPTER  XVII. 
KENTUCKY. 

LAWS  PERTAINING    TO  WAREHOUSEMEN. 

Warehoiiseiiieii — Who  deeiued  : 

Any  person  or  corporation  who  shall  receive  cotton,  tobacco, 
pork ,  grain,  corn,  wheat,  rye,  oats,  hemp,  whiskey,  coal,  or  any 
kind  of  produce ,  wares,  merchandise,  commodity,  or  any  other 
kind  or  description  of  personal  property  or  thing  whatever  in 
store,  or  undertake  to  receive  or  take  care  of  the  same,  with  or 
without  compensation  or  reward  therefor,  shall  be  deemed  and 
held  to  be  warehousemen.     Kentucky  Stats.  1899,  sec.  4768. 

Above  section  construed : 

The  person  who  issues  a  warehouse  receipt,  within  the  mean- 
ing of  the  above  act,  must  be  a  person  regularly  engaged  in  the 
business  of  warehousing.  Mechanics'  Trust  Co.  v.  Dandridge, 
18  Ky.  L.  R.  625. 

Receipt  to  be  given  for  articles : 

Every  warehouseman  receiving  anything  enumerated  in  the 
preceding  section  shall,  on  demand  of  the  owner  thereof  or  the 
person  from  whom  he  receives  the  same,  give  a  receipt  there- 
for, setting  forth  the  quality,  quantity,  kind  and  description 
thereof,  if  known,  and  which  shall  be  designated  by  some  mark, 
and  which  receipt  shall  be  evidence  in  any  action  against  said 
warehouseman.     Id.  sec.  4769. 

Receipts  negotiable  and  transferable  : 

All  receipts  issued  by  any  warehousemen  as  provided  by  this 
chapter  shall  be  negotiable  and  transferable  by  indorsement  in 
blank,  or  by  special  indorsement,  and  with  like  liability  as 
bills  of  exchange  now  are,  and  with  like  remedy  thereon.  Id. 
sec.  4770. 


256  KENTUCKY    LAWS. 

Receipt  not  to  issue  unless  goods  in  warehouse : 

No  warehouseman,  or  other  person  or  persons,  shall  issue 
any  receipt  or  other  voucher  for  any  goods,  wares,  merchan- 
dise, produce  or  other  thing  enumerated  in  section  four  thou- 
sand seven  hundretl  and  sixty-eight  of  this  article,  or  for  any 
other  connnodity  or  thing,  to  any  person  or  corporation,  un- 
less such  goods,  wares,  merchandise,  produce,  property,  com- 
modity or  thing  shall  have  been  bo?ia  fide  received  into  posses- 
sion and  store  by  such  warehouseman  or  other  jjerson,  and 
shall  be  in  store  and  under  his  control,  care  and  keeping  at 
the  time  of  issuing  such  receipt.     Id.  sec.  4771. 

Receipt  not  to  issue  as  security  unless  goods  are  in  posses- 
sion— Liens  stated  : 

No  warehouseman  or  other  person  shall  issue  any  receipt 
or  voucher  upon  or  for  any  goods,  wares,  merchandise,  prod- 
uce, connnodity,  property,  or  other  thing,  of  any  description 
or  character  whatever,  to  any  person  or  corporation,  as  security 
for  any  money  loaned  or  other  indebtedness,  unless  such  goods, 
wares,  merchandise,  produce,  commodity,  property  or  other 
thing  so  receipted  for  shall  be,  at  the  time  of  issuing  such  re- 
ceipt or  voucher,  the  property  of  the  warehouseman  and  ac- 
tually in  store  and  under  his  control,  and  if  there  be  a  li-^n  on 
the  property,  then  the  character  and  extent  of  the  lien  shall 
be  fully  set  forth  and  explained  in  the  receipt  or  voucher.  Id. 
sec.  4772. 

Duplicate  receipts  not  to  be  issued  : 

No  warehouseman  or  other  person  shall  issue  any  receipt  or 
other  voucher  for  any  goods,  wares,  merchandise,  produce  or 
other  things  enumerated  in  section  four  thousand  seven  hun- 
dred and  sixty-eight  of  this  article,  whilst  any  former  receipt 
for  any  such  goods,  wares,  merchandise,  produce,  commodity, 
property  or  thing  as  aforesaid,  or  any  part  thereof,  shall  be 
outstanding  and  uncancelled.     Id.  sec.  4773. 

Property  receipted  for  not  to  be  sold  or  incumbered  with- 
out consent : 

No  warehouseman  or  other   person  shall  sell  or  incumber, 


KENTUCKY.  257 

ship,  transfer,  or  in  any  manner  remove  beyond  his  immediate 
control,  any  goods,  wares,  merchandise,  produce,  commodity, 
property  or  chattel  for  which  a  receipt  or  voucher  shall  have 
been  given  without  the  written  consent  of  the  person  or  per- 
sons holding  such  receipt,  and  the  production  of  the  receipt. 
Id.  sec.  4774. 

Penalty  for  violation  of  this  article : 

Any  warehouseman  or  person  who  shall  willfully  and  know- 
ingly violate  any  of  the  provisions  of  this  article  shall  be 
deemed  a  cheat  and  swindler,  and  subject  to  indictment,  and, 
upon  conviction,  shall  be  fined  in  any  sum  not  exceeding  five 
thousand  dollars,  or  shall  be  imprisoned  in  the  penitentiary 
not  less  than  two  nor  more  than  five  years,  or  both  so  fined 
and  imprisoned,  in  the  discretion  of  the  jury  ;  and  every  person 
aggrieved  by  the  violation  of  any  of  the  provisions  of  this 
article  shall  have  and  maintain  an  action  against  the  person 
or  corporation  violating  any  of  the  provisions  of  this  article  to 
recover  all  damages,  immediate,  consequent,  legal  and  extra- 
ordinary, which  he  or  they  may  have  sustained  by  reason  of 
such  violation  as  aforesaid,  whether  such  person  may  have 
been  convicted  or  not.     Id.  sec.  4775. 

Above  section  construed — Indictment  under  this  act: 

For  necessary  statements  to  be  contained  in  an  indictment 
of  a  warehouseman  under  this  act,  see  Comm.  v.  Mason,  82  Ky. 
256. 

Receipts — Pledgee  may  dispose  of  : 

When  any  receipt  or  voucher  shall  have  been  issued  as  pro- 
vided by  this  article,  and  used  or  pledged  as  collateral  security 
or  otherwise  for  the  loan  of  money,  the  bank  or  person  to  whom 
the  same  may  be  pledged,  hypothecated  or  transferred  shall 
have  power  and  authority  to  sell  the  same,  and  transfer  title 
thereto  in  such  manner  and  on  such  terms  as  may  be  agreed 
upon  in  writing  by  the  parties  at  the  time  of  making  the  pledge. 
Id.  sec.  4776. 

Register  to  be  kept  by  warehouseman — What  it  shall  show : 

Wai'ehousemen  shall  keep  a  register,  in  which  shall  be  re- 
17 


258  KENTUCKY    LAWS. 

corded  a  list  and  description  of  all  property  which  may  br 
stored  in  their  warehouses,  and  the  name  and  residence  of  the 
owner,  if  known,  and  the  time  when  the  same  was  received, 
and  the  amount  of  charges  thereon.     Id.  sec.  4777. 

Sale  of  property  to  pay  storage — Notice  : 

Any  j)rop('rly  in  a  warehouse  upon  which  the  charges  have 
not  been  paid  for  twelve  months  after  the  same  have  become 
due,  unless  otherwise  provided  by  contract,  the  warehouseman 
may  sell  such  property,  or  enough  thereof  to  pay  the  charge, 
at  public  auction,  at  the  warehouse  or  at  the  courthouse  door 
of  the  county  in  which  the  warehouse  is  situated.  Before  any 
such  sale  shall  be  made,  the  warehouseman  shall  cause  the  sale 
of  the  property  to  be  advertised  for  not  less  than  twenty  days 
before  the  day  of  the  sale,  by  printed  notices  posted  at  the 
door  of  the  courthouse  of  the  county,  and  in  three  or  more 
public  places  in  the  county  where  the  sale  is  to  take  place, 
and  by  having  such  notice  published  at  least  once  a  week  for 
at  least  three  weeks  in  a  newspaper  of  general  ( irculation  in 
the  county  where  the  warehouse  is  situated.  Such  notice  shall 
contain  the  day  and  place  of  sale,  a  description  of  the  property 
to  be  sold,  if  known;  if  not,  a  description  of  the  package  in 
which  it  is  contained,  the  amount  of  charges  and  the  name 
and  place  of  residence  of  the  owner,  if  known;  and  the  ware- 
houseman, at  least  ten  days  before  the  day  of  sale,  shall  mail 
to  the  owner  a  notice  of  the  time  and  place  of  sale,  with  a  de- 
scription of  the  article  to  be  sold  and  amount  of  charges.  Id. 
sec.  4778. 

Proceeds  of  sale — How  disposed  of : 

The  warehouseman,  from  the  proceeds  of  the  sale,  shall  pay 
all  the  necessary  charges  and  costs  of  the  sale,  and  shall  hold 
the  overplus,  if  any,  subject  to  th(^  order  of  the  owner,  and 
shall,  immediately  thereafter,  mail  lo  the  owner  thereof  a  no- 
tice of  said  sale,  amount  due  him,  if  his  place  of  residence  be 
known ;  and  at  any  time  within  twelve  months  after  such  sale, 
upon  the  demand  of  the  owner,  the  warehouseman  shall  pay 
the  same  to  him.  All  such  sums  which  may  be  in  the  hands 
of  the  warehouseman,  not  claimed  by  the  owner  for  twelve 


KENTUCKY.  259 

months  after  such  sale,  shall  bo  paid  into  the  State  Treasury, 
which  shall  be  held  for  a  period  of  two  years,  subject  to  the 
order  of  the  owner  or  his  representatives,  upon  he  or  they  mak- 
ing satisfactory  proof  or  the  rightful  ownership  of  same.  Id. 
sec.  4779. 

Common-law  liability  cannot  be  restricted  : 

It  shall  be  unlawful  for  the  owners,  operators  or  controllers 
of  any  warehouse  of  the  kind  heroin  contemplated  to  make  any 
contract  restricting  or  limiting  their  common-law  liability  for 
goods  stored.     Id.  sec.  4780. 

Grain  warehouses  —  Public  granaries,  elevators,  ware- 
houses (lelined: 

Public  grain  elevators,  warehouses  and  granaries  in  this  com- 
monwealth shall  embrace  those  in  which  grain  is  stored,  in- 
spected, classified  and  sold.     Id.  sec.  4781. 

License  procured  from  county  clerk — Revocation  of  : 

The  proprietor,  lessee  or  manager  of  any  public  grain  ware- 
house shall,  before  transacting  any  business  therein,  procure 
from  the  clerk  of  the  county  court  a  license  permitting  him 
to  transact  business  of  such  a  warehouse,  which  license  shall  be 
issued  by  the  clerk  of  said  court,  on  a  written  application,  set- 
ting forth  the  location  and  name  of  such  warehouse,  and  the 
name  of  each  person  interested  as  owner  or  principal  in  the 
management  thereof;  if  the  warehouse  be  owned  or  kept  by  a 
corporation,  its  name  and  those  of  its  president,  secretary  and 
treasurer.  This  license  shall  be  granted  upon  the  payment  of  a 
fee  of  one  dollar  to  the  clerk,  and  shall  be  recorded  in  the  bond 
and  power  of  attorney  book  in  the  clerk's  office.  It  shall  be 
revocable  by  the  circuit  court  of  the  county  upon  a  summary 
proceeding  before  that  court  upon  written  complaint  of  any 
person  setting  forth  the  particular  violation  of  law,  and  on  sat- 
isfactory proof,  to  be  taken  as  may  be  directed  by  the  court. 
Id.  sec.  4782. 

Bond  to  be  executed — Terms  of — Action  on : 

The  person  receiving  a  license  shall  file  n  bond  in  the  county 
clerk's  office  with  good  sureties,  to  be  approved  by  the  court. 


260  KENXrCKY    LAWS. 

conditioned  for  the  faitliful  peiforniance  of  liis  duty  as  a  public 
grain  warehouseman,  and  his  compliance  with  the  laws  relating 
thereto,  i^uit  may  be  brought  on  such  bond  by  any  person  in- 
jured by  the  violation  of  this  law,  or  by  the  non-performance 
of  any  of  the  warehouseman's  duties.     Id.  sec.  4783. 

License  from  city  uot  dispensed  with — Penalty  for  doing 
business  witliout  : 

The  license  herein  provided  for  shall  not  dispense  with  the 
obtaininf;  fi-om  year  to  year  such  license  as  any  city  may  lawfully 
require  under  its  charter  for  the  purpose  of  taxation.  Any  one 
transacting  the  business  of  a  warehouseman  without  first  pro- 
curing a  license,  as  herein  provided,  or  continuing  such  business 
after  such  license  is  revoked  (except  by  delivering  property 
previously  stored) ,  shall  be  fined,  on  conviction,  in  the  sum  of 
one  hundred  dollars  for  each  day  such  business  is  carried  on,  and 
the  court  revoking  a  license  may  adjudge  that  no  new  one  shall 
be  granted  to  the  person  holding  it,  or  to  any  of  them,  within 
one  year  from  the  time  the  same  may  be  revoked.  Id.  sec. 
4784. 

Grain — Duty  of  warehousemen  concerning  : 

It  shall  be  the  duty  of  every  such  warehouseman  to  receive 
for  storage  any  grain  that  may  be  tendered  to  him,  without 
making  any  discrimination  between  persons,  such  grain  in  all 
cases  to  be  inspected  and  graded  by  a  duly  authoiized  in- 
spector, and  to  be  stored  with  grain  of  a  similar  grade  received 
at  the  same  time,  as  near  as  may  be.  In  no  case  shall  grain  of 
different  grades  be  mixed  together  while  in  store  ;  but  if  the 
owner  or  consignee  so  reciuests,  his  grain  may  be  kept  by  itself 
in  a  separate  bin.  If  a  warehouse  receipt  be  issued  for  grain 
so  kept  separate,  it  shall  state  on  its  face  that  it  is  in  a  sepa- 
rate bin.  Nothing  in  this  section  shall  be  so  constmed  as  to 
require  the  receipt  of  grain  into  any  warehouse  in  which  there 
is  not  sufficient  room  to  accommodate  or  store  it  properly,  or 
in  cases  where  the  warehouse  is  necessarily  closed.  Id.  sec. 
4785. 

Receipts  issued  for  grain — Form  of : 

On  application  of  the  owner  or  consignee  of  grain  stored  in 


IvKNTLCKY.  261 

such  a  warehouse,  and  the  charges  of  inspection  being  paid, 
the  warehouseman  shall  issue  lo  the  person  entitled  thereto  a 
warehouse  receipt  therefor,  subject  to  the  order  of  the  owner 
or  consignee,  which  receipt  shall  bear  date  corresponding  with 
the  receipt  of  grain  into  store,  and  shall  state  upon  its  face 
the  quantity  and  inspected  grade  of  the  grain,  and  that  the 
grain  mentioned  has  been  received  in  store,  to  be  i-e(;eive(l  with 
other  grain  of  like  grade  and  of  about  the  same  time  of  receipt, 
and  that  it  is  deliverable  ui)on  the  I'eturn  of  tli(>  receipt,  prop- 
erly indorsed  by  the  person  to  whose  ortler  it  was  issued,  and 
the  payment  of  the  proper  charges  for  storage.  All  warehouse 
receipts  for  grain  issued  from  the  same  warehouse  shall  be  con- 
secutively numbered,  and  no  two  receipts  shall  bear  the  same 
number  except  in  case  of  a  lost  or  destroyed  receipt,  in  which 
case  the  new  receipt  shall  bear  the  same  date  and  number  as 
the  original,  and  shall  be  plainly  marked  on  its  face  "  Dupli- 
cate." If  the  receipt  was  received  from  railroad  cars,  the 
number  of  each  car  shall  be  stated  upon  the  receipt,  with  the 
amount  it  contained  ;  if  from  steamboat  or  other  vessel,  the 
name  of  the  craft  ;  if  by  team  or  by  other  means,  the  manner- 
of  its  receipt  shall  be  stated.  On  delivery  of  grain  from  store 
against  receipt,  such  receipt  shall  be  plainly  marked  across  its 
face  with  the  word  ''  Cancelled  "  and  the  name  of  the  person 
cancelling  the  same,  and  shall  thereafter  be  void,  and  not  again 
be  put  in  circulation.     Id.  sec.  4786. 

Receipt  to  issue  only  for  grain  actually  delivered  : 

No  warehouse  receipt  shall  issue,  except  on  the  actual  de- 
livery of  grain  into  store  in  the  wjyehouse  from  which  it  pur- 
ports to  be  issued,  and  which  is  to  be  represented  by  the 
receipt,  nor  for  a  greater  quantity  of  grain  than  was  received. 
Where  part  of  the  grain  represented  by  the  receipt  is  delivered 
out  of  store,  a  new  receipt  may  be  issued  for  the  remainder, 
but  it  shall  bear  the  same  date  as  the  original  and  show  on  its 
face  that  it  is  balance  of  the  original  number,  and  the  receipt 
on  which  part  has  been  delivered  shall  be  cancellerl.  When  it 
is  desired  to  divide  one  receipt  or  to  consolidate  two  or  more 
into  one,  this  may  be  done  with  the  warehouseman's  consent. 
and  the  original  receipts  may  be  cancelled;  but  the  new  ones 


262  KENTUCKY    LAWS. 

must  show  on  their  face  that  they  ha\-e  proceeded  from  such 
division  or  consohdation,  together  with  the  numbers  and  dates 
of  the  old  receipts.     Id.  sec.  4787. 

Receipt  not  to  effect  legal  liability : 

No  grain  warehouseman  can,  by  any  proviso  in  the  receipt 
or  in  any  otherwise ,  restrict  the  habihty  put  upon  him  by  law. 
Id.  sec.  4788. 

Grain  to  be  delivered  upon  presentation  of  receipt  — 
Penalty : 

Upon  presentation  of  the  receipt,  properly  indorsed,  and 
tender  of  charges,  the  quality  of  grain  therein  named  shall  be 
at  once  delivered  to  the  owner ,  and  no  storage  can  be  charged 
after  demand  made;  and  for  any  delay  in  delivery  beyond  the 
time  required  with  due  cUligence,  care  and  prudence ,  the  ware- 
houseman shall  be  liable  for  damages  which,  at  the  option  of 
the  party  injured,  may  be  assessed  at  one  cent  per  bushel  for 
every  day  of  neglect  or  refusal  to  deliver.     Id.  sec.  4789. 

Statements — Posting  and  delivery  of  to  registrar : 

Each  grain  warehouseman  shall,  on  every  Tuesday,  post  in 
his  office  a  statement  of  the  amount  of  each  kind  and  grade  of 
grain  on  store  in  his  warehouse  at  the  close  of  business  hours 
of  the  preceding  Saturday,  and  shall  furnish  daily  to  a  registrar 
of  warehouses,  hereinafter  provided  for,  if  there  be  one  ap- 
pointed for  the  city  or  county  in  which  the  warehouse  is  situ- 
ated ,  a  statement  of  all  the  receipts  and  deliveries  and  of  the 
issual  and  cancellation  of  receipts  of  the  day,  together  with  any 
other  information  that  may  be  needed  for  keeping  a  true  and 
faithful  record  of  the  state  of  the  warehouse.  If  there  be  no 
registrar,  he  shall  post,  as  provided  in  this  section,  a  statement 
of  the  receipts  and  deliveries,  and  of  the  issue  and  cancellation 
of  receipts  of  the  week  ending  with  such  Saturday.  Id.  sec. 
4790. 

Inspector,  weigher  and  registrar — Appointment — Removal 
— Qualifications — Compensation: 

The  commissioner  of  agriculture  shall  appoint  an  inspector, 
weigher  and   registrar  for  the  warehouses  in  the  city,  and  fix 


KKNTUCKY.  263 

their  duties,  the  amount  and  kind  of  bond  to  be  given  by  them, 
and  their  fees,  which  shall  be  paid  by  Hk;  seller,  and  the  board 
of  trade  shall,  at  least  once  in  each  year,  establish  standard 
grades  of  the  various  kinds  of  grain  by  which  the  inspectors  shall 
be  governed  in  their  inspection;  but  any  warehouseman,  seller 
or  buyer,  or  other  person  in  interest,  may,  on  summary  com- 
plaint to  the  circuit  court  of  the  county,  obtain  a  reduction  of 
the  fees,  if,  in  the  opinion  of  that  court,  they  are  exorbitant. 
And  the  same  court  shall,  upon  complaint  of  malfeasance  or 
neglect,  remove  any  inspector,  weigher  or  registrar,  and  declare 
him  incompetent  for  reappointment,  the  proceedings  being  as 
near  as  may  be  similar  to  those  for  vacating  an  office.  No 
member  of  the  board  of  trade  or  person  interested  in  any  ware- 
house shall  be  appointed  inspector,  weigher  or  i-egistrar,  nor 
shall  any  inspector,  weigher  or  registrar  have  stored  or  offer 
for  sale,  in  any  warehouse  under  his  supervision,  any  com- 
modity owned  by  him  or  in  which  h(>  is  directly  or  indirectly 
interested,  nor  shall  he  be  a  purchaser  at  any  sale  made  by  the 
warehouse  of  any  commodity  inspected,  weighed  or  registered 
by  him.  No  person  shall  be  apjjointed  inspector,  weigher  or 
registrar  unless  he  be  a  citizen  of  the  state  of  Kentucky,  has 
attained  the  age  of  twenty-five  years,  and  has  been  a  resident 
of  the  city  for  which  he  hiis  been  chosen  at  least  one  year  next 
preceding  his  appointment.     Id.  sec.  4791. 

Rates  and  chart^es  to  be  posted  seini-aniiiially : 

Every  such  warehouseman  shall,  before  receiving  any  grain 
on  store  and  thereafter  within  the  first  week  of  every  January 
and  July,  publish  his  rates  of  storage  and  charges  for  receipts 
and  deliveries,  by  posting  them  in  his  office  and  in  the  rooms 
of  the  boarfl  of  trade,  if  there  be  any  in  a  city  situated  in  the 
same  county  as  the  warehouse,  and  shall  not  increase  them 
during  the  intervening  time,  nor  shall  any  subsequent  change 
of  rates  apply  to  grain  previously  received  in  the  warehouse. 
Id.  sec.  4793. 

Inspector  and  weigher— When  ai)]>ointed  by  fiscal  court — 
Qualifications— Bond — Fees — Term  of  office  : 

In  all  cities  and  counties  where  there  are  grain  warehouses, 


264  Kentucky  laws. 

antl  where  there  is  no  board  of  trade,  it  shall  be  the  duty  of 
the  fiscal  court  of  the  county  to  appoint  an  inspector  and 
weigher  for  said  warehouses,  who  shall  file  a  bond  in  the  county 
clerk's  office,  with  good  sureties,  to  be  approved  by  the  court, 
conditioned  for  the  faithful  performance  of  his  duty  as  such 
inspector  and  weigher,  on  w^iich  suit  may  be  brought  by  any 
person  injured  by  the  violation  of  such  duty.  Said  inspector 
and  weigher  shall  have  the  inspection  and  weighing  of  all  com- 
modities stored  in  said  warehouses.  The  fiscal  court  of  the 
county  shall  fix  the  fees  of  said  inspector  and  weigher,  which 
shall  be  paid  by  the  seller.  No  person  interested  in  any  ware- 
house shall  be  appointed  an  inspector,  weigher  or  registrar;  nor 
shall  any  inspector,  weigher  or  registrar  have  stored  or  offered 
for  sale  in  any  warehouse  under  his  supervision  any  commod- 
ity ow'ned  by  Mm  or  in  which  he  is  directly  or  indirectly  in- 
terested. Nor  shall  he  be  a  purchaser  at  any  sale  made  by 
the  warehouse  of  any  commodity  inspected,  weighed  or  reg- 
istered by  him.  No  person  shall  be  appointed  inspector  and 
w^eigher  unless  he  be  a  citizen  of  the  state  of  Kentucky,  has 
attained  the  age  of  twenty-five  years,  and  has  been  a  resident 
of  the  county  for  which  he  has  been  chosen  at  least  one  year 
next  preceding  his  appointment.  Said  inspector  and  weigher 
shall  be  appointed  for  the  term  of  two  years,  and  until  his  suc- 
cessor is  appointed  and  qualified.     Id.  sec.  4793. 

Fire  or  injury  to  grain — Wlien  warehouseman  not  liable — 
Duty  of — \ot  ice  to  owner : 

No  public  warehouseman  shall  be  held  responsible  for  any 
loss  or  damage  to  property  by  fire  while  in  his  custody,  pro- 
vided reasonable  care  be  exercised  to  {protect  and  preserve  the 
same,  nor  for  loss  or  damage  by  heating,  if  he  has  exercised 
due  care  in  handling  and  storing  the  grain,  and  the  heating 
resulted  from  causes  beyond  his  control.  To  prevent  injustice 
from  heating,  it  shall  be  the  duty  of  the  warehouseman,  as 
nearly  as  possible,  to  deliver  out  grain  of  each  grade  in  the 
order  of  time  in  which  it  was  received.  In  case,  however,  that 
a  warehouseman  shall  discover  that  any  part  of  the  grain  in  his 
warehouse  is  out  of  condition,  or  becoming  so,  and  it  is  not  in 
his  power  to  preserve  the  same  (provided  it  is  not  stored  in  a 


KENTUCKY.  265 

separate  bin  as  above  provided  for),  he  shall,  by  notice  published 
in  a  daily  newspaper  of  Louisville,  or  in  the  county  where  the 
warehouse  is  situated,  if  there  be  one,  and  posted  at  the  board 
of  trade  rooms,  if  there  is  a  board  of  trade  in  the  city  where  the 
warehouse  is  located,  or  by  written  notice  to  the  person  to 
whom  the  warehouse  receipt  was  issued,  if  known,  of  its  actual 
condition,  as  near  as  he  can  ascertain  it,  state  the  kind  and  grade 
of  grain,  and  the  bin  in  which  it  is  stored;  and  shall  also  state 
in  such  notice  the  receipts  outstanding  upon  which  such  grain 
will  be  delivered,  giving  the  numbers,  amounts  and  dates  of 
each,  which  receipts  shall  be  those  of  the  oldest  dates  then  in 
circulation  or  uncancelled,  the  grain  represented  by  which  has 
not  previously  been  declared  or  receipted  for  as  out  of  condi- 
tion; or  if  the  grain  longest  in  store  has  not  been  receipted  for, 
he  shall  so  state,  and  shall  give  the  name  of  the  party  for  whom 
such  grain  was  stored,  the  date  it  was  received,  and  the  amount 
of  it ;  and  the  enumeration  of  receipts  and  identification  of  grain 
so  discredited  shall  embrace,  as  near  as  may  be,  so  great  a  quan- 
tity of  grain  as  is  contained  in  such  bins;  and  such  grain  shall 
be  delivered  upon  the  return  and  cancellation  of  the  receipts, 
and  the  unreceipted  grain  upon  the  request  of  the  owner  or  per- 
son in  charge  thereof.  Nothing  herein  contained  shall  be  held 
to  relieve  the  said  warehouseman  from  exercising  proper  care 
and  vigilance  in  preserving  such  grain  after  publication  of  its 
condition;  but  such  grain  shall  be  kept  separate  and  apart 
from  all  direct  contact  with  other  grain,  and  shall  not  be  mixed 
with  other  grain  while  in  store  in  such  warehouse.  Any  ware- 
houseman guilty  of  any  act  of  neglect,  the  effect  of  which  is  to 
depreciate  property  stored  in  the  warehouse  under  his  control, 
shall  be  held  responsible  as  at  common  law,  or  upon  the  bond 
of  such  warehouseman,  and,  in  addition  thereto,  the  license  of 
such  warehouseman  shall  be  revoked.  In  case  the  grain  de- 
clared out  of  condition,  as  herein  provided  for,  shall  not  be  re- 
moved from  store  by  the  owner  thereof  within  two  months  from 
the  date  of  the  notice  of  its  being  out  of  condition,  it  shall  be 
lawful  for  the  warehouseman  where  the  grain  is  stored  to  sell 
the  same  at  public  auction,  for  account  of  said  owner,  by  giving 
ten  days'  public  notice  in  a  daily  newspaper  of  Louisville,  or  of 


266  KKNTIC^KV    LAWS. 

the  county  where  the  warehouse  is  situated,  if  there  be  one. 
Id.  sec.  4794. 

Grain  of  different  qualities  not  to  be  mixed  : 

It  shall  not  be  lawful  for  any  public  warehouseman  to  mix 
any  grain  of  different  grades  together,  or  to  select  different 
qualities  of  the  same  grade  for  the  purpose  of  storing  or  de- 
livering the  same,  nor  shall  he  attempt  to  deliver  grain  of  one 
grade  for  another,  or  in  any  way  tamper  with  grain  while  in 
his  possession  or  custody  with  a  view  of  securing  any  profit  to 
himself  or  any  other  person;  and  in  no  case,  even  of  grain 
stored  in  a  separate  bin,  shall  he  be  permitted  to  mix  grain  of 
different  grades  together  while  in  store.  He  may,  however, 
on  request  of  the  owner  of  any  grain  stored  in  a  private  bin, 
be  permitted  to  dry,  clean  or  otherwise  improve  its  condition 
or  value  of  any  such  lot  of  grain;  but  in  such  case  it  shall  only 
be  delivered  as  such  separate  lot,  or  as  the  grade  it  was  origi- 
nally when  received  by  him,  without  reference  to  the  grade  it 
may  be  as  improved  by  such  process  of  drying  or  cleaning. 
Nothing  in  this  section,  however,  shall  prevent  any  warehouse- 
man from  moving  grain  while  within  his  warehouse  for  preser- 
vation or  safe-keeping.     Id.  sec.  4795. 

Inspector  or  weigher — Penalty  for  neglect : 

Any  duly  authorized  inspector  and  weigher  of  grain,  who 
shall  be  guilty  of  neglect  of  duty,  or  who  shall  knowingly  or 
carelessly  inspect  or  grade  any  grain  improperly,  or  who  shall 
accept  any  money  or  other  consideration,  directly  or  indirectly, 
for  any  neglect  of  duty  or  the  improper  performance  of  any 
duty  as  such  inspector  of  grain,  and  any  person  who  shall  im- 
properly influence  any  inspector  of  grain  in  the  performance  of 
his  duties  as  such  inspector,  shall  be  deemed  guilty  of  a  mis- 
demeanor and,  on  conviction,  shall  be  fined  in  a  sum  not  less 
than  one  hundred  dollars  nor  more  than  one  thousand  dollars, 
in  the  fliscretion  of  the  jury,  or  shall  be  imprisoned  in  the 
county  jail  not  less  than  three  nor  more  than  twelve  months, 
or  both,  in  the  discretion  of  the  jury.     Id.  sec.  4796. 

Law — Copy  of  this  to  he  posted  : 

All  proprietors  or  managers  of  public  grain  warehouses  shall 


KKNTUCKV.  •'(;■ 


keep  posted  up  at  all  tiiiios,  in  a  coiisiMcuous  plaw;  in  their 
business  offices,  and  in  each  of  tlu>ir  warehouses,  a  printed 
copy  of  this  act.     Id.  sec.  4797. 

Tobacco  Avarehoiises — Who  are  wareliousemeii  ? 

All  persons  receiving  in  this  commonwealth  leaf  tobacco  for 
storage  and  sale 'at  public  auction,  for  which  they  charge  com- 
mission or  fees  for  their  services,  are  declared  public  ware- 
housemen.    Id.  sec.  4798. 

Duties  of  wareliousemen— Weighing  and  marking?  casks  : 

That  hereafter  warehousemen  storing  and  selling  leaf  tobacco 
in  this  state  shall  carefully  and  correctly  weigh,  or  cause  to 
be  weighed,  every  hogshead,  box  or  bale  of  tobacco  which  may 
be  sent  to  such  warehousemen  for  storage  and  sale  on  the  day 
same  is  to  be  sold.  They  shall  mark,  or  cause  to  be  marked, 
the  gross  weight  distinctly  on  the  head  of  each  hogshead,  box 
or  bale,  and  on  each  sample  card,  and  enter  the  same  in  sample 
book,  and  after  the  tobacco  is  stripped,  they  shall  take  the 
exact  tare  weight  of  each  cask  in  which  the  tobacco  has  been 
prized  ;  and  after  each  hogshead,  box  or  bale  of  tobacco  has 
been  sold,  the  proprietor  shall  settle  with  the  seller  according 
to  the  net  weight,  including  the  sample,  after  deducting  the 
exact  tare.     Id.  sec.  4799. 

Above  section  construed : 

The  settlement  with  the  customer  must  be  actual,  and  the 
action  must  be  brought  by  the  "party  aggrieved."  Mc- 
M asters  v.  Burnett,  92  Ky.  358.  See  also  Murrell  v.  Citizens 
Bank,  19  Ky.  L.  R.  693. 

False  weights— Mutilating?   samples— Penalty— Liability : 

If  any  person  or  persons  shall  make  a  false  or  fraudulent 
weight  of  such  tobacco,  or  shall  purposely  alter  or  mutilate  any 
sample  before  the  hogshead,  box  or  bale  it  represents  has  been 
sold,  or  alter  the  weight  marked  thereon,  or  record  other 
weights  on  the  warehouse  books  than  the  weights  marked  there- 
on, such  persons  shall  be  deemed  guilty  of  a  misdemeanor  and 
fined  in  any  sum  of  not  less  than  twenty-five  nor  more  than 
one  hundred  dollars,  in  the  discretion  of  the  court  or  jury  try- 


268  KENTUCKY   LAWS. 

ing  the  case,  and  in  addition,  shall  be  liable  to  the  party  ag- 
grieved in  damages  for  any  and  all  loss  they  may  have  sus- 
tained.    Id.  sec.  4800. 

Commissions — Compensation  : 

That  hereafter  warehousemen  and  commission  merchants  en- 
gaged in  seUing  leaf  tobacco  at  public  auction,  shall  receive  as 
commission  or  compensation  therefor  two  dollars  per  hogshead 
from  the  owner    hereof  or  his  agent.     Id.  sec.  4801. 

Rejections — Fees  on  resale : 

That  in  the  event  the  sale  of  any  hogshead  of  tobacco  is 
rejected,  and  a  resale  is  made  by  the  same  warehouseman  or  in 
the  same  warehouse,  no  greater  sum  than  one  dollar  and  fifty 
cents  per  hogshead  shall  be  charged  as  fees  or  compensation 
for  such  resale,  and  no  additional  charge  shall  be  made  for 
weighing,  nor  device  resorted  to  so  as  to  increase  the  price  for 
selling  to  a  greater  amount  than  is  in  this  act  provided.  Id. 
sec.  4802. 

Commissions  for  paying  money  to  seller  not  allowed  : 

That  it  shall  be  unlawful  for  any  warehouseman  or  commis- 
sion merchant  to  directly  or  indirectly  charge  the  seller  or 
owmer  anything,  by  way  of  commission  or  otherwise,  for  pay- 
ing to  him  the  money  for  which  his  tobacco  is  sold.  Id.  sec. 
4803. 

Hypothecating  forbidden — Exception  : 

That  it  shall  be  unlawful  for  any  warehouseman  to  hj'pothe- 
cate  or  pledge  any  tobacco  shipped  to  or  stored  with  him,  or 
issue  any  warehouse  receipts  for  any  tobacco  so  shipped  or 
stored,  without  the  written  consent  of  the  owner. of  said  to- 
bacco; and  if  he  does  so  without  the  written  consent  of  the 
owner,  said  pledge  or  receipt  shall  be  null  and  void:  Provided, 
That  nothing  herein  contained  shall  prevent  any  warehouseman 
or  commission  merchant  from  hypothecating  or  pledging  or 
issuing  receipts  to  the  extent  of  any  advancements  they  may 
have  made  to  the  owner  of  said  tobacco  on  same.  Id.  sec. 
4804. 


KENTUCKY.  269 

Reclamations  —When  to  be  made  : 

That  claims  for  reclamation  shall  be  made  in  ninety  days 
after  sale,  anless  the  tobacco  is  exported  to  foreign  countries, 
then  the  reclamation  must  be  made  within  six  months  after 
the  sale,  and  if  not  done  within  said  time,  the  claim  shall  be 
barred  by  limitation.     Id.  sec.  4805. 

Nesting  and  side-prizing — Penalty  : 

That  if  any  person  shall  nest,  side-prize  or  fraudulently  prize 
any  leaf  tobacco,  such  person  so  offending  shall  be  deemed 
guilty  of  a  misdemeanor,  and  upon  indictment  and  conviction 
in  the  circuit  court  of  the  county  in  which  said  offense  is  com- 
mitted, shall  be  fined  not  less  than  twenty-five  nor  more  than 
one  hundred  dollars,  in  the  discretion  of  the  court  or  jury  try- 
ing the  case,  and  every  hogshead,  bale  or  box  so  prized  shall 
constitute  a  separate  offense.     Id.  sec.  4806. 

Liability  of  warehousemen — Evidence  : 

That  the  proprietor  of  any  warehouse  shall,  for  any  viola- 
tion of  the  provisions  of  the  nine  proceeding  sections,  be  liable 
to  the  party  aggrieved  thereby  in  the  sum  of  not  less  than 
twenty-five  and  not  more  than  one  hundred  dollars,  and  on  the 
trial,  the  bills,  accounts,  statements  of  sale  rendered  by  said 
warehousemen  shall  be  prima  facie  evidence  of  guilt.  Id.  sec. 
4807. 

Additional  penalties  and  liabilities ; 

That  any  person  guilty  of  nesting,  side-prizing  or  otherwise 
fraudulently  prizing  leaf  obacco,  in  addition  to  penalties  de- 
nounced in  section  four  thousand  eight  hundred  and  six  of  this 
act,  shall  be  liable  to  the  party  aggrieved  in  such  damages  as 
he  may  have  sustained,  to  be  recovered  in  any  court  having 
jurisdiction  in  the  county  where  said  tobacco  is  nested,  side- 
prized  or  fraudulently  prized.     Id.  sec.  4808. 

Rejections — When  permitted  fees : 

If  the  sale  of  any  tobacco  is  rejected  by  either  the  buyer  or 
seller,  the  party  rejecting  shall  only  be  required  to  pay  the 
fee  for  the  hogsheads,  bales  or  boxes  rejected  by  him-  Pro- 
vided, hoivever,  That  the  buyer  shall  not  be  permitted  to  reject 


270  KENTUCKY    LAWS. 

any  hogshead,  box  or  bale  of  tobacco  unless  the  seller  shall 
first  have  rejected,  and  then  only  an  equal  number  of  boxes, 
bales  or  hogsheads  as  the  seller  may  have  rejected.  Id. 
sec.  4809. 

Combination  to  control  or  interfere  with  bidding  unlawful : 

That  it  shall  be  unlawful  for  any  tobacco  warehousemen, 
corporation  or  individuals  to  combine  together,  by  any  rule, 
by-law  or  otherwise,  for  the  purpose  of  controlling,  or  in  any 
way  interfering  with,  the  free  and  unrestricted  right  to  bid  on 
or  to  purchase  leaf  tobacco  offered  for  sale  at  public  auction 
at  any  warehouse  or  place  of  sale  where  tobacco  is  sold  by 
such  warehousemen  for  others  in  this  commonwealth.  Id. 
sec.  4810. 

Preventing  persons  from  bidding — Unlawful : 

That  it  shall  be  unlawful  for  any  organization  or  corporation 
under  the  laws  of  this  state  to  prohibit  any  of  its  menbers  or 
others  from  bidding  on  or  purchasing  leaf  tobacco  at  any  ware- 
house that  now  exists  or  may  hereafter  be  organized  or  estab- 
lished in  this  commonwealth.     Id.  sec.  4811. 

Sales  to  be  free  and  open  : 

That  all  sales  of  leaf  tobacco  at  public  auction  in  this  state 
shall  be  free  and  open  to  all  responsible  bidders.     Id.  sec.  4812. 

Discrimination  between  purchasers  forbidden : 

That  all  tobacco  warehousemen  selling  leaf  tobacco  in  this 
state  shall  make  no  distinction  or  difference  between  pur- 
chasers as  to  chai'ges,  samples,  warranty  or  otherwise,  whether 
said  purchasers  be  members  of  the  tobacco  exchange  or  not. 
Id.  sec.  4813. 

Penalties  for  violation  of  four  preceding  sections : 

Any  warehouseman,  agent,  manager,  corporation  or  organ- 
ization who  shall  violate  any  of  the  provisions  of  the  four 
preceding  sections  shall  be  guilty  of  a  misdemeanor,  and  shall, 
upon  trial  and  conviction  in  any  court  of  competent  jurisdic- 
tion, be  fined  for  each  ofTense  in  any  sum  not  less  than  twenty- 
five  dollars  nor  more  than  one  hundred  dollars,  in  the  discre- 


KENTUCKY.  271 

tion  of  the  court  or  jury  trying  the  case  and,  in  addition,  shall 
forfeit  all  their  corporate  rights  and  privileges  under  the  laws 
of  this  state.     Id.  sec.  4814. 

Distiller,  wlio  is,  in  iiieauiiig  of  this  section  : 

That  every  person  (firm,  joint  stock  company  or  corporation) 
who  produces  distilled  spirits,  or  who  brews  or  makes  mash, 
wort  or  wash,  fit  for  distillation,  or  for  the  production  of  spirits, 
or  who  by  any  j)rocess  of  evaporation  separates  alcoholic  spirits 
from  grain,  molasses,  or  fruit,  or  any  other  substance  fermented, 
or  who  making  or  keeping  mash,  wort  or  wash,  has  also  in  his 
possession  or  use  a  still,  is  within  the  meaning  of  this  act  a 
distiller.     Id.  sec.  2572a. 

Warehouse  receipts  to  be  issued  by  distiller— Penalty : 

That  no  person,  firm  or  corporation  shall  issue  or  sign  any 
warehouse  receipt  or  substitute  for  such  receipt  on  whiskey 
stored  in  a  distillery  bonded  warehouse  in  this  commonwealth, 
except  the  distiller,  and  any  person  other  than  the  actual  owner 
and  operator  of  a  distillery,  who  shall  issue  or  sign  any  ware- 
house receipt  or  substitute  therefor  in  violation  of  section  two 
of  this  act,  shall  be  guilty  of  a  felony,  and,  upon  indictment 
and  conviction,  be  confined  in  the  penitentiary  for  a  period  of 
time  not  less  than  two  nor  more  than  ten  years  in  the  discre- 
tion of  the  jury.    Id.  sec.  2572a,  subsec.  6. 


272  KENTUCKY    DECISIONS. 


DECISIONS  AFFECTING  WAREHOUSEMEN. 

A. 

Bailment  and  sale — Mixing  of  grain. 

Where  a  party  deposits  his  grain  for  storage  merely  and  it  is 
mixed  with  other  grain  he  does  not  part  with  his  title — there 
is  no  sale  but  merely  a  bailment.  Ferguson,  Jr.,  Assignee,  v. 
Northern  Bank  of  Kentucky,  14  Bush.  555;  Moss  v.  Meshew,  8 
Bush,  187;  Newcomh,  Buchanan  ^  Co.  v.  Cahall,  10  Bush,  460; 
May  V.  Hoaglan,  9  Bush,  171;  Crawford  v.  Smith,  7  Dana,  59; 
Jenings  v.  Flanagan,  5  Dana,  217. 

B. 

Warehouseman's  authority  and  liability  commences  with  the 
reception  of  goods. 

A  warehouseman  has  no  interest  in,  or  power  over  goods, 
nor  hability  for  the  same,  until  they  are  actually  received  by 
him.     Jefferson  R.  R.  Co.  v.  White,  6  Bush,  251. 

Ordinary  care — Liability  for  goods  stolen. 

Nine  hundred  barrels  of  salt  were  stored  and  two  hundred  and 
forty  of  them  stolen  at  ten  different  times  during  a  period  ex- 
tending over  a  month.  Held  the  warehouseman  was  liable, 
not  having  used  ordinary  diligence  to  preserve  the  salt.  Cheno- 
with  &  Co.  V.  Dickinson  &  Shrewsberry,  8  B.  M.  156. 

Damages  against  warehouseman  for  violation  of  warehouse  law 
— Res  judicata. 

The  plaintiff  bank  brought  an  action  against  the  defendant 
on  his  note  which  he  had  issued  to  one  M.,  a  warehouseman, 
M.  in  turn  having  indorsed  the  same  to  the  plaintiff.  To  this 
suit  the  defendant  set  up  a  number  of  defenses  by  way  of  set- 
off and  counterclaim,  and  on  account  of  usury.  The  defenses 
were  substantially  allowed  by  the  lower  court  with  the  excep- 
tion of  counterclaim  for  a  large  sum  alleged  to  be  due  him  for 
damages  growing  out  of  the  violation  by  the  warehouseman  of 
the  statutes  regulating  his  duties.  This  action  was  brought  on 
the  equity  side  of  the  court,  there  being  a  mortgage  on  certain 


KENTUCKY.  273 

property  to  secure  the  payment  of  the  note.  Later  the  de- 
fendtmt  brought  an  action  against  the  warehouseman  for  the 
identical  cause  of  action  alleged  in  his  counterclaim.  The  trial 
resulted  in  a  judgment  for  a  small  amount  for  him  but  the 
court,  by  the  instructions,  limited  the  recovery  to  those  viola- 
tions of  the  statute  occurring  prior  to  a  certain  date  (why  this 
was  done  does  not  appear  on  record).  Aft(5r  this  conmion-law 
suit  had  terminated,  the  defendant  in  the  original  action  filed 
an  amended  answer  in  counterclaim  in  the  equity  suit  in  which 
he  claimed  damages  for  violations  subsequent  to  the  aforesaid 
date.  It  was  held,  on  appeal,  that  this  was  error,  that  the 
proceedings  in  the  common-law  action  put  in  issue  the  alleged 
violations  of  the  warehousemen's  act  and  although  there  had 
been  another  warehousemen's  law  enacted,  the  court  ought  to 
have  controlled  the  action  of  the  jury  by  instructions  under 
these  statutes.  Had  the  court  refused  to  do  so,  M.  would  have 
had  his  right  of  appeal.  The  very  facts  attempted  to  be  put 
in  issue  by  the  amended  answer  and  counterclaim  in  the 
ef^uity  suit  had  already  been  put  in  issue  in  the  common-law 
action,  and  were  either  tried  out  before  the  juiy  or  should 
have  been.  Miirrell  v.  Citizen  s  Savings  Bank,  19  K.  L.  R. 
693. 

Warehouseman' s  bond — That  business  constituted  a  monopoly 
no  defense  for  sureties — Effect  of  suspension  from  the  exchange. 

A  consignor  of  tobacco  brought  an  action  against  G.,  a  ware- 
house company,  and  several  individuals,  who  had  become  sure- 
ties on  the  bond  of  the  company  that  it  would  account  for  the 
proceeds  of  all  sales  made  of  tobacco  consigned  to  it.  The  de- 
fendant answered  and  alleged  that  G.  had  been  suspended  from 
membership  in  the  exchange  and  therefore  that  the  bond  given 
by  it  and  the  other  defendants  to  the  exchange  was  no  longer 
in  effect.  By  an  amended  answer  the  defendants  alleged  that 
the  purposes  for  which  the  exchange  was  formed  were  illegal, 
in  that  they  attempted  to  create  a  monopoly  or  trust  and  thus 
stifle  competition;  and,  consequently,  the  bond  given  to  it  was. 
void  and  of  no  effect.  The  answer  also  contained  a  denial  of 
the  shipment  and  sale  and  of  the  indebtedness.  Demurrers  to 
all  of  the  matters  contained  in  the  answer  except  that  last 
18 


274  KENTUCKY    DECISIONS. 

stated,  were  sustained  and,  by  agreement  of  the  parties, 
the  case  was  submitted  to  the  court,  a  jury  trial  being 
waived.  Judgment  was  given  for  the  plaintiff  for  the  full 
amount  of  his  claim.  On  appeal  it  was  held  that  the  plea  of 
the  appellants  in  regard  to  the  illegal  nature  of  the  business  of 
the  exchange  and  in  regard  to  the  suspension  of  the  company 
as  a  member  of  the  exchange  was  not  sufficient  in  law  to  re- 
lieve them  of  their  liabilit}^  as  principal  and  sureties  on  the 
bond.  That  before  the  order  of  suspension  could  relieve  the 
sureties  from  liability  it  would  have  to  be  shown  that  it  was 
either  brought  to  the  attention  of  the  plaintiff  or  that  public 
notice  thereof  had  been  given.  Globe  Tobacco  Warehouse  Co. 
V.  Leach,  19  K.  L.  R.  1287. 

Public  warehousemen — Duty  to  the  public — Cannot  lessen  their 
liability  by  changing  name. 

Public  warehousemen  are  invested  with  a  monopoly  of  certain 
public  privileges,  made  so  as  a  matter  of  necessity,  and  this 
authorizes  the  exercise  of  legislative  power  over  them  for  the 
public  welfare.  Warehousemen  have  assumed  a  gwasii-public 
character  under  the  protection  of  the  law,  and  will  not  be  al- 
lowed to  exercise  all  the  privileges  that  have  heretofore  be- 
longed to  warehousemen,  and  evade  all  the  duties  and  responsi- 
bilities of  the  position  by  the  passage  of  a  resolution  declaring 
that  they  are  operating  their  business,  not  in  the  capacity  of 
warehousemen,  bid  as  commission  merchants.  Such  warehouse- 
men are  obliged,  therefore,  to  receive  from  the  public  tobacco 
in  store  for  which  they  can  make  a  reasonable  charge  ;  but 
while  this  right  exists  it  does  not  follow  that  a  court  of  equity 
will  undertake  to  grant  relief  by  injunction  where  one  party  is 
as  much  in  fault  as  the  other.  Nash  v.  Page,  80  Ky.  539;  A''. 
D.  ex  rel.  Stoeser  v.  Brass,  2  N.  D.  482,  affirmed  153  U.  S.  391 ; 
Munn  V.  Illinois,  69  111.  80,  affirmed  94  U.  S.  113.  See  also 
People  V.  Biukl  117  N.  Y.  1,  affirmed  143  U.S.  517.  See 
State  V.  Associated  Press,  159  Mo.  410. 

Same — Sale  of  goods  not  belonging  to  bailor — Effect  of  recording 
chattel  mortgage. 

Where  a  public  warehouseman,  acting  in  the  usual  course  of 


KENTUCKY.  276 

business,  received  tobacco  for  sale  and  sold  the  same  and 
turned  the  proceeds  over  to  his  customer,  in  the  absence  of 
any  notice  that  he  was  not  the  owner  thereof,  it  was  held  that 
he  was  not  liable  to  the  real  owner  although  there  was  a  chattel 
mortgage  covering  the  tobacco  in  question  duly  recorded.  Be- 
ing a  public  warehouseman  he  assumes  the  obligations  of  serv- 
ing the  (entire  public,  having  no  right  to  select  his  customers, 
provided  they  conform  to  reasonable  rules  and  regulations. 
Abernathy  &  Long  v.  Wheeler  M.  &  Co.,  92  Ky.  320  ;  Nash  v. 
Page,  80  Ky.  539. 

Conversion — Sale  by  bailee. 

If  the  bailee  of  property  sell  it  to  an  innocent  purchaser, 
his  sale  does  not  transfer  the  property  to  the  purchaser,  but 
the  bailor  may  have  recourse  against  the  bailee  or  against  the 
vendee.     Chism  v.  Woods,  Hardin,  531. 

Same — Ratification  of  unauthorized  sale. 

Where  a  warehouseman  sold,  without  authority,  goods  in  his 
care  and  the  owner  received  the  proceeds  of  sale  and  failed 
to  promptly  disavow  the  same  by  returning  the  money,  held 
the  sale  had  been  ratified.     Clay  v.  Spratt  &  Co.,  7  Bush,  334. 

Same — What  amounts  to. 

The  mere  possession  of  goods  received  by  a  bailee,  without 
any  claim  or  interest  in  the  chattels,  in  ignorance  of  the  fact  that 
his  possession  is  adverse  to  that  of  the  real  owner,  does  not 
amount  to  a  conversion;  there  must  be  an  exercise  of  dominion 
or  control  over  the  property  for  the  benefit  of  the  bailee  that 
is  inconsistent  with  the  claims  of  the  real  owner.  He  must 
assert  some  lien  upon  or  have  some  interest  in  the  prop(>rty 
before  there  can  be  a  conversion,  in  the  absence  of  a  demand 
and  refusal.     Newcomb- Buchanan  Co.  v.  Baskett,  77  Ky.  658. 

H. 

Storage  charges — Paid  twice — Warehouseman  liable — Ware- 
house receipt. 

If  a  warehouseman  issue  a  receipt  in  which  it  is  provided 
that  the  storage  charges  are  to  be  paid  when  the  goods  are  de- 


276  KENTLCKY    DECISIUNS. 

livered,  whereas  in  fact  the  charges  were  paid  at  the  time  of 
the  deposit  of  the  goods,  it  was  held  that  if  the  person  to  whom 
the  receipt  was  transferred  paid  such  charges  that  the  ware- 
liouseman  was  hable  to  the  original  bailor  for  the  amount  paid 
by  him.     Atherton  v.  Bonnie  Bros.,  9  K.  L.  R.  107. 

Lien — Superiority  of  pledgee's  lien. 

A  warehouseman  having  notice  as  to  who  was  the  real  owner 
of  tobacco  stored  with  him,  sold  the  same  as  the  tobacco  of  the 
person  to  whom  the  same  was  pledged.  It  appeared  that  the 
owner  had  agreed  with  the  warehouseman  that  the  latter  should 
sell  the  tobacco  for  liim.  In  an  action  between  the  warehouse- 
man and  the  pledgee  for  the  purchase  price,  it  was  held  that 
the  contention  of  the  warehouseman  that  he  was  entitled  to  de- 
duct from  such  sum  the  amount  which  he  had  paid  to  the 
owner  under  the  contract  to  ship  the  goods  to  him  for  sale 
could  not  be  sustained,  the  lien  of  the  pledgee  being  superior 
to  that  of  the  warehouseman.  Hare,  McLeod  &  Co.  v.  Kelly, 
11  K.  L.  R.  309. 

Same — None  for  other  debts. 

Neither  the  custody  of  the  warehouseman  nor  the  pledge  of 
whiskey  by  delivery  of  the  warehouse  receipts  gives  the  ware- 
houseman or  pledgee,  any  general  lien  for  debts  not  arising 
from  relation  of  warehouseman  or  pledgee. 

The  plaintiff,    a  warehouseman,   was  merely  a  bailee,   and 

when  the  warehouse  receipts  were  delivered  to  him  he  became 

a  pledgee  as  well ;  but  neither  relation  gave  him  a  general  lien 

to  cover  debts  or  charges  not   connected  with  his  position  as 

warehouseman  or  pledgee  for  a  specific  purpose.     Indeed,  the 

express  agreement  of  plaintiff  to  return  the  whiskey  when  the 

specified  debts  were  paid  would  seem  to  preclude  a  claim  of  a 

lien  for  debts  other  than  those  specified.      Atherton  Co.  v.  Ives, 

20  Fed.  Rep.  894. 

M. 

Pledge— By  factor— Pledgee  acting  in  good  faith— Amount  of 
damages. 

There  is  no  substantial  difference  between  the  pledge  made 
by  a  factor  and  a  pledge  made  by  a  pledgee.     The  courts  while 


KENTUCKY.  2T7 

holding  that  a  factor  has  no  right  to  pledge  the  goods  of  his 
principal  haNc  n(>vertheless  allowed  the  amounts  sought  to  \)v. 
recovered  of  the  innocent  pledgee  of  the  factor,  to  be  reduced 
by  the  sums  justlv  due  from  the  principal  to  his  factor.  First 
National  Bank  v.  Boyce,  78  Ky.  42. 

Pledge — By  bill  of  lading. 

Property  may  be  pledged  by  the  transfer  and  delivery  of  the 
bill  of  lading  representing  same.  Petitt  &  Co.  v.  First  Na- 
tional Bonk  of  Memphis,  4  Bush,  334;  Douglas,  Receiver,  v. 
Peoples'  Bank  of  Kentucky,  86  Ky.  176. 

Same — Legal  title  does  not  pass. 

To  constitute  a  valid  lien  by  a  pledge  of  property,  it  is  not 
necessary  that  the  legal  title  should  be  transferred  as  in  the 
case  of  a  mortgage,  but  on  the  contrary,  the  title  generally  re- 
mains in  the  pledgor.     Id. 

N. 

Loss  by  fire — Diligence — Effect  thereon  of  appointment  of  gov- 
ernment storekeeper . 

The  appointment  by  the  Internal  Revenue  Department  of 
storekeepers  who  are  invested  with  the  joint  custody,  with  the 
warehousemen,  of  the  warehouses  and  goods  stored  therein, 
does  not  lessen  in  any  degree  the  diligence  which  the  latter,  as 
bailees  for  hire,  are  by  the  general  laws  recpiired  to  exercise  to 
prevent  fire  from  being  communicated  to  their  houses  or  to  the 
goods  in  their  custody.     Macklin  v.  Frazier,  9  Bush,  3. 

Same — Failure  to  remove  goods. 

Where  a  fire  occurred  at  night  and  warehouseman  failed  to 
remove  plaintiff's  whiskey,  although  there  was  an  opportunity 
to  do  so,  but  a  statute  prohibited  removal  of  spirits  at  any  time 
except  between  sunrise  and  sunset,  held  it  was  the  duty  of  the 
warehouseman  to  disregard  this  provision  of  the  law  only  when 
the  destruction  of  the  whiskey  was  inevitable.     Id. 

Misdelivery — Liable  for  conversion. 

In  regard  to  delivery,  the  warehouseman  is  obliged  to  deliver 
to  his  bailor  or  in  accordance  with  his  order.     Any  other  dis- 


278  KENTUCKY    DECISIONS. 

position  of  the  goods  intrusted  to  him  constitutes  a  conversion. 
Jefferson  R.  R.  Company  v.  White,  6  Bush,  251. 

Accident — There  must  be  no  negligence. 

A  warehouseman  or  other  bailee  cannot,  by  stipulating  that 
he  will  not  be  liable  in  case  of  loss  or  damage  resulting  from 
accidents,  <  scape  his  hability  for  any  loss  or  damage  due  to  his 
negligence.     BridweU  v.  Moore,  8  K.  L.  R.  535. 

Burden  of  -proof — Negligence. 

With  certain  exceptions  such  as  common  carrier  and  inn- 
keeper, the  burden  of  proof  of  negligence  is  upon  the  bailor, 
and  mere  proof  of  loss  is  not  sufficient  to  put  the  bailee  upon 
his  defense.  Power  v.  Brooks  &  Parker,  7  K.  L.  R.  204 ;  Craigs, 
Admn.,  v.  Lee,  14  B.  M.  119,  distinguished. 

Evidence — Custo  m —  Usage. 

In  order  to  establish  that  a  certain  usage  or  custom  exists, 
evidence  must  be  received  to  show  what  has  been  generally 
done  under  similar  circumstances  and  the  admission  of  testimony 
as  to  particular  acts  is  error.  Bridivell  v.  Moore,  8  K.  L.  R. 
535. 

0. 

Measure  of  damages — Allowance  of  interest. 

The  value  of  the  property  at  the  date  of  conversion  is  the 
true  criterion,  and  the  jury,  in  their  discretion,  may  allow  or 
refuse  to  allow  interest.  Newcomb-Buchanan  Co.  v.  Baskett,  77 
Ky.  663. 

P. 

Insurance — Notice  of  loss. 

Warehousemen  had  a  large  quantity  of  tobacco  in  store,  upon 
which  they  carried  open  policies  of  insurance.  After  destruc- 
tion by  fire  they  notified  the  owner  of  one  of  the  hogsheads  to 
advise  them  of  the  value  thereof.  The  warehousemen  received 
no  reply  to  the  notification  and  settled  with  the  insurance  com- 
pany as  best  he  could  \mder  the  circumstances.  It  was  held 
that  this  ation  was  conclusive  on  the  part  of  the  owner  of  the 
hogshead  and  that  she  could  not  be  heard  to  complain  after- 
wards.    Burks  V.  Sawyer,  Wallace  &  Co.,  11  K.  L.  R.  762. 


KENTUCKY.  279 

Same — Custom — Effect  of  instructions. 

Where  there  was  a  custom  among  warehousemen  to  insure  all 
tobacco  intrusted  with  them,  such  custom  will  not  be  binding 
on  one  who  receives  instructions  from  his  depositor  not  to  insure 
the  tobacco.  This  is  conclusive  uj)()]i  the  warehouseman  and 
exonerates  him  from  liability  for  failure  to  insure.  Cottrell  v. 
Branin,  B.  &  G.,  14  K.  L.  R.  580  ;  Western  Dist.  Warehouse 
Co.  V.  Hayes,  16  K.  L.  R.  763. 

Same — Effect  of  failure  to  make  proof  of  loss  within  time  stated 
in  policy. 

The  failure  to  make  the  proof  of  loss  of  the  insured  goods, 
within  the  time  stated  in  the  policy,  does  not  work  a  forfeiture 
thereof  but  such  proof  must  be  made  before  the  beginning  of 
the  action  upon  the  policy  of  insurance.  Dwelling  House  In- 
surance Co.  V.  Freeman,  12  K.  L.  R.  894. 

Warehouse  receipt — Right  to  issue — Estoppel. 

An  instruction  to  the  jury  to  the  effect  that  the  jury  must 
find,  first,  that  the  warehouseman  was  authorized  to  sell  the 
goods  in  question  and  secondly  that  he  was  authorized  to  issue 
a  receipt  therefor.  It  was  held  that  this  was  error,  that  an 
authorization  to  sell  carried  with  it  the  necessary  authority  to 
issue  a  warehouse  receipt  for  the  goods  sold.  Although  sec- 
tion 7  of  the  Warehouse  Laws  of  1869  requires  a  written 
permission  from  the  holder  of  the  first  receipt,  before  the  ware- 
houseman can  issue  a  second  one,  that  the  act  did  not  apply 
to  the  case  above.  Where  the  holder  of  the  first  receipt  had 
already  instructed  the  warehouseman  to  sell  the  goods,  he 
would  be  estopped  to  deny  that  the  warehouseman  had  author- 
ity to  sell  and  consequently  the  authority  to  issue  the  receipt. 
That  the  purposes  of  the  above  act  are  for  the  prevention  of 
fraud  and  the  encouragement  of  commerce  ;  and  the  statute 
would  not  be  applied  in  a  case  where  the  effect  thereof  would 
be  to  the  contrary.  Farmer  v.  Gregory  &  Stagg,  78  Ky.  475  ; 
Taylor  v.  Farmer,  81  Ky.  458. 

Same — For  his  oion  goods. 

A  warehouseman  may   issue  a   receipt   for   his  own   goods 


280  KENTICKY   DECISIONS. 

stored  in  his  warehouse.  But  warehousemen  crai  assert  no 
claim  against  such  goods  unless  it  be  shown  upon  the  ware- 
house receipt.  G  eenbaum  Bros.  &  Co.  v.  Megibben,  10  Bush, 
419  ;  Cochran  &  Fulton  v.  Ripley,  Hardie  &  Co.,  13  Bush,  495  ; 
Ferguson,  Jr.,  Assignee,  v.  Northern  Bank  of  Ky.,  14  Bush,  555. 

Same — Distinguishing  marks. 

By  act  of  Marcli  6,  1869,  it  is  required  "  that  a  warehouse 
receipt  shall  set  forth  the  (luality,  quantity,  kind,  and  descrip- 
tion of  the  property  it  represents,  and  which  shall  be  desig- 
nated b}'  some  mark."  It  was  held  that  the  usual  or  known 
trade-mark  of  a  firm,  found  on  all  of  its  property  stored  in  a 
warehouse,  is  not  a  sufficient  designation  by  marks  to  comply 
with  this  statute.  It  must  be  such  as  will  enable  the  party  to 
identify  the  particular  property  and  to  distinguish  it  from  that 
of  a  similar  kind  and  quality  ;  such  is  the  plain  purpose  of  the 
statutes.  Ferguson  Jr.,  Assignee,  v.  Northern  Bank  of  Ken- 
tucky, 14  Bush,  555. 

Same — Notice  as  to  unpaid  purchase  price — What  the  receipt 
must  contain. 

A  warehouse  receipt  for  goods  for  which  the  purchase  price 
has  not  been  paid  need  not  contain  a  statement  as  to  the 
amount  of  the  unpaid  purchase  price  in  order  to  protect  the 
vendor.  The  receipt  on  its  face  must  contain  such  facts  as 
would  put  a  person  accepting  the  same  on  inquiry.  Western 
Bank  v.  Marion  Co.  Distilling  Co.,  9  K.  L.  R.  500  ;  Same  v. 
Same,  89  Ky.  94  ;  Pike  v.  Greenhaum,  12  K.  L.  R.  423. 

Same — Negotiability — What  a  holder  thereof  takes. 

Although  warehouse  receipts  are  made  negotiable  by  the  law 
of  this  state,  the  holder  of  a  receipt  takes  no  better  title,  and 
stands  in  no  better  -attitude,  than  if  the  goods  themselves  had 
been  delivered  to  him.  Such  receipts,  no  matter  under  what 
section  of  the  act  of  1869  they  are  issued,  are  in  lieu  of,  and 
represent  the  property  to  which  they  refer,  and  their  negotia- 
bility serves  only  to  ward  off  any  defense  which  the  warehouse 
keepers  may  have.  First  National  Bank  of  Louisville  v.  Boyce, 
78  Ky.  42  ;  Greenbaum  Bros.  &  Co.  v.  Megibben,  10  Bush,  419. 


KKiSTUCKV.  lliSl 

Same — Same — Indorser  's  liability — Warehouse  receipts  are  ne- 
gotiable and  transferable  by  indorsement. 

The  indorser 's  liability  is  the  same  as  that  of  one  who  in- 
dorses bills  of  exchange.  Cochran  &  Fulton  v.  Ripley,  Hardie 
&  Co.,  13  Bush,  495  ;  Greenbaum  Bros.  &  Co.  v.  Megibben,  10 
Bush,  419  ;  Ferguson,  Jr.,  Assignee,  v.  Northern  Bank  of  Ken- 
tucky, 14  Bush,  555  ;  Greenbaum  v.  Burns,  13  K.  L.  R.  267. 

Same — Negotiability — Innocent  holder  protected. 

A  warehouseman  sold  whiskey  and  accepted  the  purchaser's 
note  in  payment  therefor  and  then  issued  to  the  purchaser  a 
warehouse  receipt,  in  which  it  was  stated  that  the  whiskey  was 
deliverable  on  return  of  the  receipt  and  payment  of  storage 
charges.  The  purchaser  borrowed  money  and  gives  this  receipt 
as  collateral  security  for  the  payment  of  the  debt.  In  an  ac- 
tion, by  the  one  who  had  loaned  the  money  to  the  purchaser, 
against  the  warehouseman,  it  was  held  that  the  whiskey  should 
be  sold,  applying  the  proceeds  first  to  the  plaintiff's  debt  and 
the  balance,  if  any,  to  the  warehouseman  for  the  payment  of 
the  debt  due  him,  from  the  purchaser,  on  the  purchase  price 
anrl  storage  charges.  Greenbaum  Bros.  &  Co.  v.  Megibben, 
10  Bush,  419. 

Same — Same — For  goods  not  actually  in  store — Bona  fide  holder. 

The  fact  that  a  warehouseman  has  incurred  a  penalty,  by 
issuing  receipts  for  goods  not  in  his  warehouse,  will  not  effect 
the  validity  of  such  receipt  in  the  hands  of  one  acting  in  good 
faith.     Cochran  &  Fulton  v.  Ripley,  Hardie  &  Co.,  13  Bush,  495. 

Same — Saine — Bona  fide  holder. 

Where  a  warehouse  receipt  is  taken  for  a  prior  indebtedness, 
the  transferror  having  no  right  to  assign  the  receipt,  such 
person  cannot  be  said  to  be  a  bona  fide  holder  and  thus  take 
free  and  clear  of  all  equities.  Carstairs,  McC.  &  Co.  v.  Kelly, 
16  K.  L.  R.  64. 

Same — Same — Same — Notice  as  to  purchase  price  being  unpaid. 

A  warehouseman  who  was  also  a  wholesale  liquor  dealer  sold 

a  large  quantity  of  whiskey  to  D.,  and  took  in  payment  there- 


282  KENTUCKY    DECISIONS. 

for  D.'s  accepted  draft  due  in  thirty  days.  At  the  time  of  tlie 
acceptance  of  the  draft  the  warehouseman  dehvered  to  D.  ten 
warehouse  receipts  representing  the  whiskey  purchased.  There 
was  nothing  stated  on  the  receipt  to  show  tliat  the  purchase 
price  was  unpaid,  and  it  was  therein  stated  that  the  whiskey 
was  deUverable  only  upon  the  return  of  the  receipt  properly 
indorsed,  and  on  the  payment  of  the  government  and  state 
tax  and  storage  charges  due  thereon.  D.  sold  the  whiskey  to 
plaintiff  who  took  the  warehouse  receipts  without  notice  that 
the  purchase  price  was  not  i)aid.  On  the  above  stated  facts,  it 
was  held  that  the  plaintiff  was  entitled  to  recover,  that  the 
warehouseman  having  issued  and  given  currency  to  the  negoti- 
able receipts,  he  could  not  escape  liability  thereon  at  the  suit 
of  an  innocent  purchaser  for  value,  without  establishing  by 
proof  that  the  owner  had  actual  notice  that  the  purchase  money 
had  not  been  paid,  and  that  it  was  the  agreement  that  it  should 
be  paid  before  the  whiskey  should  be  delivered ;  that  any  other 
construction  of  it  would  enable  the  Avarehouseman  to  take  ad- 
vantage of  his  own  wrong.  That  where  a  warehouseman  issues 
such  receipts  he  puts  it  in  the  power  of  the  holder  to  treat  on 
the  face  of  it ;  he  enables  a  holder  to  say,  and  to  induce  others 
to  believe,  that  he  has  certain  property  which  he  can  sell,  or 
pledge  for  the  loan  of  money.  And  if  a  warehouseman  gives 
to  the  party  who  holds  such  a  receipt  a  false  credit,  he  will 
not  be  suffered  to  contradict  the  statement  which  he  has  made 
in  the  receipt  so  as  to  injure  the  party  who  has  been  misled 
by  it.  Collins  &  Co.  v.  Rosenham,  19  K.  L.  R.  1445  ;  McNeal 
V.  Hill,  1  Woll.  W.  (U.  S.)  96. 

Same — ^.s  collateral — Goods  not  in  warehouse — Bona  fide  holder. 

A  warehouseman  issued  receipts  as  collateral  securit}^  to  one 
who  had  made  a  loan  to  him.  At  tlie  time  of  this  transac- 
tion the  goods  represented  by  the  receij^ts  were  not  in 
the  warehouse.  When  the  loan  came  due  the  same  was  re- 
newed and  the  warehouseman  issued  new  receipts  to  the 
lender.  At  this  time  the  goods  represented  were  actually  in 
store.  It  was  held  that  although  the  warehouseman  had  vio- 
lated the  statutes  in  the  first  instance  by  issuing  receipts  when 
goods  represented  thereby  were  not  in  his  possession,  this  would 


KENTL'CKV.  288 

not  deprive  the  lender  of  his  rights  of  a  bona  fide  holder  with- 
out notice,  since  the  second  receipts  wliicli  he  held  were  not  in 
violation  of  the  statutes.  Further,  that  the  extension  of  the 
loan  was  a  sufficient  consideration  for  the  issuance  of  the  new 
receipts.  Cochran  d'  Fulton  v.  Riyley,  Hardie  &  Co.,  13  iiusli, 
495. 

Same — ISame — Bona  j'lde  holder  protected. 

A  warehouseman  sold  whiskey  to  A,  who  pledged  the  receipts 
as  collateral  secui-ity  with  i^,  the  warehouseman  retaining  pos- 
session of  the  goods.  ri)on  d(>fault  in  ])ayment  by  A  of  his 
debt  to  B,  the  latter  Ix'caine  ownei-  of  the  warehouse  receipts. 
In  an  action  between  H  and  the  warehouseman  it  was  held 
that  B's  rights  were  sui)erior  to  the  claim  of  the  warehous(»man 
for  unpaid  purcliaso  money.  Crreuhnini)  v.  Bnrnf<,  15  K.  L.  R. 
716. 

Same — Same — Receipt  must  contain  distinguishing  marks. 

In  an  action  by  a  bank  against  the  assignee,  in  insolvency, 
of  a  warehouseman  for  the  recovery  of  the  value  of  property 
upon  which  the  warehouseman  had  borrowed  money  and  had 
delivered  to  the  bank  his  warehouse  receipts  for  the  sani(>,  as 
collateral  security,  it  appeared  that  there  were  no  distinguish- 
ing marks  upon  the  warehouse  receipts  exce}it  the  usual  trade- 
mark of  the  firm;  it  also  a{)peared  that  there  was  a  large  ([uan- 
tity  of  other  goods  similarl}'  marked.  The  court  held  that  the 
requirements  of  the  act  of  March  G,  1869,  in  regard  to  dis- 
tinguishing marks,  liad  not  been  complied  with,  for  the  marks 
must  be  such  as  will  distinguish  the  ])roperty  represented  by 
the  receipt  from  otlier  j)r()perty  of  similar  kind  and  (lUaUty; 
accordingly  the  judgment  given  for  the  plaintiff,  in  the  lower 
court,  was  reversed  and  the  case  remanded.  Ferguson,  Jr.,  As- 
.^ignee,  v.  Northern  Bank  of  Kentucky,  14  Bush,  555. 

Same — As  collateral — Duplicate . 

Where  a  warehouseman  pledged  with  one  making  a  loan  to 
him,  a  warehouse  receipt  in  whicli  it  was  stated  that  the  ware- 
houseman held  certain  goods  t'oi'  a  third  per.son,  it  was  held 
that  this  was  a  fraud  on  its  face  for  the  warehouseman  had  no 


284  KENTUCKY    DECISIONS. 

right  to  possess  such  a  receipt  nor  to  pledge  the  same,  and  that 
the  receipt  was  void.  Smith  v.  Anderson  &  Co.,  10  K.  L,  R. 
725. 

Same — Assignee  of  warehousemen — Estoppel . 

It  was  contended  that  the  assignee  of  a  warehouseman  was 
estopped  to  deny  a  sale  of  property  stored  in  his  assignor's 
warehouse.  This  in  an  action  against  the  assignee  personally 
for  the  conversion  of  the  property,  it  was  held  that  he  was 
not  so  estopped,  and  further,  that  the  burden  of  proof  was  on 
the  plaintifT  to  show  title  in  himself.  Ferguson,  Jr.,  Assignee, 
V.  Northern  Bank  of  Kentucky,  14  Bush,  555. 

Same — Liability . 

The  assets  of  the  warehouseman  in  the  hands  of  his  assignee 
may  be  reached  by  the  holder  of  an  ineffectual  warehouse  re- 
ceipt issued  by  the  warehouseman,  but  such  assignee  is  not 
personally  liable  therefor.     Id. 

Same — Duplicate  of. 

A  firm  of  distillers  having  decided  to  issue  new  green  re- 
ceipts for  old  yellow  ones  placed  in  the  hands  of  their  finan- 
cial manager  the  green  receipts.  There  were  certain  yellow 
receipts  outstanding  being  pledged  to  secure  a  note  held  by  a 
creditor.  The  financial  manager  did  not  take  up  these  yellow 
receipts  but  issued  new  green  receipts  against  the  same  whiske}^ 
to  secure  an  indebtedness  to  another  creditor.  The  note  to 
former  creditor  was  paid  but  only  part  of  the  yellow  receipts 
returned.  Held  that  this  vested  in  the  holder  of  the  green 
receipts  title  to  the  whiskey  represented  by  the  returned  yellow 
receipts  and  this  so  even  though  the  returned  yellow  receipts 
were  immediately  pledged  by  the  firm  to  obtain  the  cash  with 
which  to  meet  the  check  given  by  them  to  take  up  the  note. 
Block  V.  Oliver  &  O'Bryan,  19  K.  L.  R.  1278. 

Sa?ne — Same — Effect  of  retention  of  receipt  after  payment  of 
note — Other  indebtedness. 

Under  the  statement  o'f  facts  as  set  forth  above  where  the 
person  to  whom  the  original  yellow  receipts  were  pledged  does 


KENTUCKY.  285 

not  deliver  all  of  the  same  upon  payment  of  the  note,  it  was 
held  that  the  evidence  would  not  sustain  the  contention  that 
he  hekl  such  receipts  as  bailee  of  the  warehouseman,  but  that 
it  would  be  i)resumed  that  he  retained  them  as  collateral  se- 
curity for  the  payment  of  other  indebtedness  due  him  Ijy  the 
warehouseman.  Further,  that  the  contention  that  no  liability 
on  the  part  of  the  warehouseman  (>xisted  on  account  of  green 
receipts,  until  all  of  the  yellow  receipts  were  surrendered  and 
cancelled  could  not  be  sustained,  and  that  the  warehouseman 
was  liable  to  the  one  to  whom  the  green  receipts  were  issued 
for  the  property  represented  thereby.     Id. 

Same — Same — Counsel  fees  recoverable. 

Appellant  recovered  counsel  fees  from  warehouseman,  such 
expenditure  being  occasioned  by  issue  of  duplicate  receipts  by 
warehouseman.  Held  correct.  Lupe  v.  Anderson  Distilling  Co., 
9  K.  L.  R.  149. 

Same — Same — Constitutes  actual  fraud. 

The  issuance  of  duplicate  receipts  to  one  who  takes  without 
notice  of  the  fact  that  former  receipts  have  been  issued  con- 
stitutes, according  to  princij^le  and  authority,  actual  frau^l 
which  cannot  be  avoided  by  declaration  of  honest  motives. 
Taylor  v.  Farmer,  81  Ky.  458;  Farmer  v.  Gregory  &  Stagg,  78 
Ky.  475. 

B. 

Bill  of  lading — Negotiability. 

A  bill  of  lading  does  not  possess  the  characteristics  of  bills  of 
exchange  or  other  negotiable  instruments  placed  on  the  footing 
of  bills  of  exchange.  The  peculiar  characteristics  of  these  in- 
struments rest  entirely  upon  statute  or  conmiercial  usage  sanc- 
tioned by  express  consent,  A  bill  of  lading  has  neither  of  these 
to  rest  upon.  It  does  not  represent  money,  and  it  does  not 
possess  the  characteristics  of  negotiable  commercial  paper. 
When  it  is  said  that  a  bill  of  lading  is  negotiable,  it  is  only 
meant  that  its  true  owner  may  transfer  it  by  indorsement,  or 
assignment,  so  as  to  vest  the  legal  title  in  the  indorsee.  Doug- 
las, Receiver,  v.  Peoples^  Bank  of  Ky.,  86  Ky.  176;  Polland  v. 
Vinton,  105  U.  S.  7. 


286  LOUISIANA    LAWS. 


CHAPTER  XVIII. 
LOUISIANA. 

LAWS  PERTAINING  TO  WAREHOUSEMEN. 

Governing  the  manner  in  which  cotton-press  receipts,  ware- 
house receipts,  or  the  receipts  of  other  custodians  of  any  prop- 
erty whatever,  shall  be  issued,  in  all  cases  where  such  receipts 
shall  or  may  be  used  or  pledged  as  collateral  security  for  money 
advanced  or  borrowed  on  faith  of  the  property  therein  specified, 
and  governing  the  delivery  and  disposal  of  the  property  for 
which  such  receipts  may  be  issued. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
State  of  Louisiana  in  General  Assemhly  convened :  That  no  cotton 
press,  or  other  custodian  or  custodians  of  produce  or  property 
shall  issue  any  receipt  or  other  voucher  for  any  produce,  mer- 
chandise or  other  property,  to  any  person  or  persons  purporting 
to  be  the  holder,  owner  or  owners  thereof,  unless  such  produce, 
merchandise  or  other  property  shall  have  been  actually  received 
into  store,  or  upon  the  premises  of  such  cotton  press,  or  other 
custodian  or  custodians,  shall  be  in  the  store,  cotton  press  or 
warehouse,  or  on  the  premises  aforesaid,  or  under  his  or  their 
control  at  the  time  of  issuing  such  receipt. 

Be  it  further  enacted,  etc.:  That  any  person,  firm  or  associa- 
tion who  shall,  or  may  be,  or  in  any  way  become  the  custo- 
dians of  any  property,  goods,  products  or  merchandise  what- 
ever, and  who  may  issue  receipts  therefor,  shall  not,  under  any 
circumstances,  or  upon  any  order  or  guarantee  whatever,  deliver 
property  for  which  such  receipts  have  been  issued  until  the  party 
or  parties  to  whom  the  receipts  were  issued,  or  the  legal  holders 
thereof,  shall  have  surrendered  the  same  to  said  custodians  for 
cancellation,  and  in  default  of  a  strict  compliance  with  the 
provisions  of  this  section  of  this  act,  they  may  be  held  liable 
by  the  legal  holder  or  owner  of  their  receipt  for  the  market 
value  of  the  property  therein  described  as  may  be  established 


LOUISIANA.  287 

by  the  chamber  of  commerce  of  the  city  of  New  Orleans  or 
any  conmiittee  thereof,  approved  and  authenticated  by  the 
president  or  vice  president  of  said  chaml^er  of  commerce.  All 
warehouse  receipts  intended  for  pledge  under  the  provisions  of 
this  act  shall  be  paragraphed  before  being  issued,  as  follows; 
I'or  hypothecation  in  accordance  with  the  provisions  of  this  act. 

Be  it  further  enacted,  etc.:  That  no  cotton  press  or  other  custo- 
dian or  custodians  of  produce  or  other  property  shall  issue  any 
second  or  duplicate  receipt  for  any  goods,  wares,  merchandise, 
grain,  flour,  or  other  produce  or  commodity,  while  any  former 
receipt  for  any  such  goods,  wares,  merchandise,  grain,  flour,  or 
other  produce  or  commodity  as  aforesaid,  or  any  part  thereof, 
shall  be  outstanding  and  uncancelled,  without  writing  across  the 
face  of  the  same,  "duplicate,"  in  a  highly  conspicuous  manner. 
And  any  person  who  may  issue  warehouse  receipts  for  any  prop- 
erty of  any  kind  whatsoever  not  actually  in  their  possession  and 
under  their  entire  control,  shall  be  and  are  hereby  made  liable 
for  the  market  value  of  any  and  all  property  for  which  they 
may  have  issued  such  false  receipts  in  manner  as  specified  in 
foregoing  section,  and  sh^Lll  furthermore  be  liable  to  criminal 
prosecution  as  having  aided  and  abetted  in  obtaining  money 
under  false  pretenses. 

Be  it  further  enacted,  etc.:  That  parties  who  may  borrow  money 
on  the  faith  of  warehouse  receipts,  representing  property  in  store, 
shall  file  their  affidavit  with  the  pledgees  that  such  property  is 
theirs,  the  pledgors'  personal  property,  or  that  it  is  the  property 
of  some  party  for  whom  the  pledgor  is  acting  as  agent,  factor, 
commission  merchant,  or  in  any  other  fiduciar}^  capacity,  and 
that  said  party  is  justly  and  truly  indebted  to  the  pledgor  in  an 
amount  equal  in  value  to  the  value  of  the  property  pledged, 
as  specified  in  the  warehouse  receipt,  for  moneys  paid  to  him, 
or  paid  by  his  order  and  for  his  account  by  the  party  or  con- 
signee making  the  pledge.  The  cashier  of  a  bank  or  the  secre- 
tary of  any  insurance  company  incorporated  or  working  under 
any  law  in  the  United  States  or  of  this  state  is  hereby  author- 
ized to  administer  the  oath  contemplated  under  the  provisions 
of  this  act.  Any  deviation  therefrom  shall  render  the  party  or 
parties  so  deviating  liable  for  the  value  of  the  property,  or  any 


288  LOUISIANA    LAWS. 

excess  in  value  over  and  above  the  amount  for  which  it  may 
have  been  pledged  in  any  manner  specified  in  section  one  of 
this  act,  and  to  prosecution  for  perjury  and  also  for  obtaining 
money  under  false  pretenses. 

Be  it  further  enacted,  etc.:  That  the  vendors'  lien  of  five  days' 
privilege,  now  allowed  in  commercial  transactions  for  the  pay- 
ment of  the  purchase  price,  shall  not  be  affected  by  the  provisions 
of  this  act,  except  in  case  in  which  a  warehouse  receipt  has  been 
pledged  as  collateral  for  money  borrowed.  The  holder  of  the 
warehouse  receipt  shall  be  considered  and  held  as  the  actual 
owner  of  the  property  described  in  the  receipt,  and  no  clause 
of  tliis  act  shall  operate  to  the  detriment  or  injury  of  the  holder 
of  a  warehouse  receipt,  to  the  extent  of  the  value  of  the  prop- 
erty specified,  made  and  issued  in  accordance  with  and  under 
the  provisions  of  this  act;  provided,  that  where  the  factor,  agent 
or  pledgor  may  have  wrongfully  pledged,  in  violation  of  this 
act,  any  property,  the  lien  of  the  owner  shall  be  valid  even 
against  the  third  holder  of  the  warehouse  receipt. 

Be  it  jvrther  enacted,  etc.:  That  should  the  pledgor  fail  to  pay 
his  pledge  note,  secured  by  warehouse  receipts  representing  the 
property  therein  described,  on  the  day  of  its  maturity,  the  pledgee 
shall,  on  the  following  day  after  the  maturity  of  such  pledge  note, 
notify  the  pledgor  of  same,  and  inform  him  that  he  may  appoint 
one  expert  to  act  jointly  with  another  one  to  be  appointed  by 
the  pledgee,  which  expert  shall  examine,  appraise,  and  sell  the 
goods  or  merchandise  pledged,  or  such  an  amount  of  the  same 
as  they  may  determine  to  satisfy  the  claim  of  the  pledgee,  to- 
gether with  costs  and  the  usual  expenses.  In  case  of  doubt  the 
two  experts  already  selected  will  be  authorized  to  ai)i)()int  a 
third.  In  the  event  of  the  pledgor  refusing,  or  for  any  reason 
failing  to  appoint  such  expert  within  five  days,  allowing  one 
additional  day  for  every  twenty  miles  that  the  residence  of  the 
pledgee  may  be  distant  from  the  residence  of  the  pledgor,  then 
the  pledgee  shall  be  and  he  is  hereby  authorized  and  empowered 
to  appoint  two  exports,  and  they  to  appoint  a  third,  all  of 
whom  shall  bo  familiar  with  the  value  and  management  of  the 
character  of  the  merchandise  involved ;  said  experts  to  examine, 
appraise,  and  sell  to  the  best  possible  advantage  all  of  the  prod- 


LOUISIAlfA.  289 

uce  pledged,  or  such  an  amount  as  may  be  necessary  to  settle 
the  pledge  note  in  full,  together  with  such  costs  and  necessary 
expenses  as  may  be  or  have  been  incurred.  The  experts  thus 
api)()inted  sliall  proceed  at  once  to  take  action  and  to  complete 
their  duties  at  the  earliest  practical  day  consistent  with  the 
usual  and  customary  manner  of  selling  the  produce  or  merchan- 
dise in  question,  and  saitl  experts  shall  make  their  report  im- 
mediately thereafter.  They  shall  be  authorized  to  sell  at  public 
auction,  after  five  days'  notice  in  a  public  journal  published  in 
the  parish  in  which  the  pledgee  resides,  without  legal  process 
of  any  kind  or  description  whatever;  and  the  pledgee  or  holder 
of  said  warehouse  receipt  shall  be  in  full  and  complete  posses- 
sion of  the  merchandise  described  in  the  receipt  from  and  after 
the  day  on  which  the  pledge  note  based  on  the  merchandise 
may  have  matured;  the  surrender  of  the  warehouse  receipt  to 
the  custodian  or  custodians  of  the  property,  and  cancellation 
of  same,  shall  relieve  and  exonerate  them  from  all  further  re- 
sponsibility in  the  premises. 

Be  it  further  enacted,  etc. :  That  said  experts  shall  make  a  sworn 
statement  of  their  proceedings  and  the  disposition  of  the  funds 
realized,  and  file  said  statement  in  the  office  of  some  duly  quali- 
fied notary  public,  or  in  any  court  of  record  located  in  the  parish 
in  which  the  pledgee  may  reside.  Said  experts  shall  receive 
such  fee  as  may  be  agreed  upon,  but  they  shall  not  be  au- 
thorized to  exact  a  fee  in  excess  of  the  usual  commissions 
charged,  according  to  commercial  usage,  on  the  character  of 
the  property  upon  which  they  may  have  administered. 

Be  it  further  enacted,  etc.:  That  all  warehouse  receipts  as  by 
this  act  provided,  shall  be  negotiable  by  indorsement  in  blank, 
or  by  special  indorsement,  in  the  same  manner  and  to  the  same 
extent  a-^  bills  of  exchange  and  promissory  notes  now  are. 

Be  it  further  enacted,  etc. :  That  this  act  shall  take  effect 
from  and  after  its  passage,  and  all  laws  or  parts  of  laws  in  con- 
flict herewith  be  and  the  same  are  hereby  repealed.  Laws, 
1876,  No.  72,  p.  113. 

Above  act  construed— Owner  protected  whore  factor  retains 
receipt  in  his  own  name  and  pledges  the  same  : 

Under  the  above  act  and  the  other  statutes  of  this  state  per- 
19 


290  LorisrA^"A  laws. 

taining  to  brokers,  warehousemen,  factors  and  warehouse  re- 
ceipts, it  was  held  that  it  was  not  the  intention  of  the  general 
assembly  that  where  a  factor  should  b?  the  holder  of  a  ware- 
house receipt  taken  out  by  himself  in  his  owm  name,  that  such 
statutes  would  confer  upon  joarties  the  right  to  deal  with  him 
as  owner  and  to  absolutely  ignore,  under  full  protection  of  the 
law,  the  relation  which  the  factor  bore  to  the  property  and  to 
its  owner.  Holton  &  Winn  v.  Huhhard  &  Co.  et  al.,  49  La. 
Ann.  715. 

To  amend  the  act  No.  125  of  1880,  approved  April  10,  1880, 
with  reference  to  corporations  for  works  of  public  improve- 
ment. 

Be  it  enacted  by  the  General  Assembly  of  the  state  of  Louisiana  : 
That  section  4  of  said  Act  No.  125  be  amended  and  re- 
enacted  so  as  to  read  as  follows  :  That  any  railroad,  plank  road, 
turnpike,  canal,  elevator  or  warehouse  company,  or  any  com- 
pany for  drainage,  sewerage,  land  reclamation  and  levee  build- 
ing, established  under  the  laws  of  this  state,  whether  under  and 
by  special  or  general  act,  may  borrow  from  time  to  time  such 
sums  of  money  as  may  be  required  for  construction,  repairs  or 
acquisition  of  property  or  franchises,  and  for  this  purpose  may 
issue  bonds  or  other  obligations,  secured  l)y  mortgage  or  pledge, 
as  the  case  may  be,  of  the  franchises  and  all  the  property,  real  and 
personal,  and  incomes,  revenues,  contributions,  and  receipts  of 
said  companies,  and  payable  in  such  terms  and  at  such  times 
and  places  as  the  board  of  directors,  trustees,  managers  or  com- 
missioners may  direct  or  designate,  with  power  to  sell,  pledge 
or  otherwise  dispose  of  said  bonds  on  such  terms  as  the  rail- 
road respectively  may  direct  or  deem  expedient.  Laws,  1882, 
No.  102,  p.  155. 

An  act  to  define  and  regulate  the  business  of  public  ware- 
houses, and  the  issue  of  public  warehouse  receipts ;  to  define  and 
punish  violations  of  this  act,  and  to  repeal  conflicting  laws. 

Note.  For  an  act  to  repnlate  the  employment  of  children,  younfj  per- 
sons and  women  in  warehouses  or  workshops  where  the  manufacture  of  any 
goods  whatever  is  carried  on  or  where  any  jjoods  are  ])repared  for  manu- 
facturing, see  act  No.  43,  Laws  of  Louisiana,  1886,  p.  55. 


LULISIANA.  291 

Formalities  and  qualification  : 

That  the  proprietor,  lessee  or  manager  of  any  pubHc  ware- 
house, whether  an  individual,  firm  or  corporation,  before  trans- 
acting any  business  in  such  warehouse,  shall  procure  from  the 
civil  district  court  of  the  parish  in  which  the  warehouse  or  ware- 
houses are  situated,  a  certificate  that  he  is  transacting  business 
as  a  public  warehouseman  under  the  laws  of  this  state,  which 
certificate  shall  be  issued  by  the  clerk  of  said  court,  upon  a 
written  petition  setting  forth  the  location  and  name  of  such 
warehouse  or  warehouses  and  the  name  of  each  person  individ- 
ually or  a  member  of  the  firm,  interested  as  owner  or  principal 
in  the  management  of  the  same;  or  if  the  warehouse  be  owned 
or  managed  by  a  corporation,  the  names  of  the  president,  sec- 
retary and  treasurer  of  such  corporation  shall  be  stated,  and 
the  said  certificate  shall  give  authority  to  carry  on  and  con- 
duct the  business  of  a  public  warehouse  within  the  meaning  of 
this  act,  and  shall  be  revocable  by  said  court  upon  a  summary 
proceeding  before  the  court,  on  comi^laint  by  written  petition 
of  any  person  setting  forth  the  particular  violation  of  the  law, 
and  upon  satisfactory  proof,  as  in  other  cases  at  law.  The  per- 
son receiving  a  certificate,  as  herein  provided  for,  shall  file  with 
the  clerk  of  the  court  granting  same,  a  bond  to  the  state  of 
Louisiana,  with  good  and  sufficient  security,  to  be  approved  by 
said  court,  in  the  penal  sum  of  five  thousand  dollars  (S5,000) 
conditioned  for  the  faithful  performance  of  his  duty  as  a  public 
warehouseman,  and  his  full  and  unreserved  compliance  mth  all 
laws  of  the  state  relating  to  such  business. 

Penalty  for  non-compliance : 

That  any  individual,  member  of  firm,  or  president,  secretary 

or  treasurer  of  a  corporation,  who  shall  transact  the  business 

•  of  a  public  warehouse  without  first  procuring  a  certificate  as 

therein  provided,  or  who  shall  continue  to  transact  any  such 

.'business  after  such  certificate  has  been  revoked  (save  only  tiiat 

he  may  be  permitted  to  deliver  property  previously  stored  in 

such  warehouse)  shall,  in  summary  proceedings  on  the  written 

petition  of  any  person  setting  forth  the  fact,  as  above,  and  upon 

satisfactory  proof  before  the  court  whose  clerk  is  authorized 

to  issue  the  certificates  i)rovi(led  for  in  section  first  of  this  act, 


'292  LOU  LSI  AN  A    LAWS. 

be  adjudged  to  pay  to  the  police  jury  of  the  parish  where  the 
warehouse  is  situated,  or  to  the  city  of  New  Orleans,  if  that  be 
the  location  of  the  warehouse,  at  the  discretion  of  the  court,  a 
suin  not  less  than  one  hundred  dollars  (SlOO),  nor  more  than 
five  hundred  dollars  (SoOO),  and  costs  of  court,  for  each  and 
every  day  such  business  is  so  carried  on;  and  the  court  may 
refuse  to  renew  the  certificate  or  to  grant  a  new  one.  to  any  of 
the  persons  whose  certificate  has  been  revoked,  within  one  vear 
from  the  time  the  same  was  revoked.  But  nothing  herein  shall 
be  construed  to  interfere  with,  repeal  or  conflict  with  the  reg- 
ular license  laws  of  the  parish,  city  or  state. 

.  Receipts,  how  issued,  etc. : 

That  on  application  of  the  owner  or  depositor  of  the  prop- 
erty stored  in  a  jjublic  warehouse,  the  warehousemen  shall  is- 
sue over  his  own  signature,  or  that  of  his  duly  authorized  agent, 
a  public  warehouse  receipt  therefor,  to  the  order  of  the  person 
entitled  thereto,  which  receipt  shall  purport  to  be  issued  by  a 
public  warehouse,  shall  bear  date  of  the  da)'  of  its  issue,  and 
shall  state  upon  its  ftice  the  name  of  the  warehouse  and  its  lo- 
cation, the  description,  (juantity,  number  and  marks  of  the 
property  stored,  and  the  date  on  which  it  was  originally  received 
in  warehouse,  and  that  it  is  deliverable  ii))on  the  return  of  the 
receipt  properly  indorsed  by  the  person  to  whose  order  it  was 
issued,  and  on  payment  of  all  charges  for  storage.  All  such 
receipts  shall  be  numbered  consecutively,  in  the  order  of  their 
issue,  and  no  two  receipts  bearing  the  same  number  shall  be 
issued  from  same  warehouse  during  the  same  year,  nor  shall 
any  duplicate  receipt  be  issued,  except  in  the  case  of  a  lost  or 
destroyed  receipt  in  which  case  the  new  receipt  shall  bear  the 
same  date  and  number  as  the  original,  and  be  plainly  marked 
on  its  face,  "Duplicate";  and,  provided,  that  no  such  dupli- 
cate receipt  shall  be  issued  by  any  public  warehouseman  imtil 
adequate  security  be  deposited  with,  or  to  the  order  of,  said 
warehouseman  to  protect  the  party  or  parties  who  may  finally 
hold  the  original  receipt  in  good  faith  and  for  a  valid  consid- 
eration. 

Not  without  previous  receipt  of  £?oo(ls  : 

That  no  warehouse  receipt  shall  be  issued  except  upon  the- 


LOUISIANA.  293 

actual  previous  delivery  of  the  goods  into  the  warehouse  or  on 
the  premises  and  under  the  control  of  the  warehous(;man  by 
whom  it  purports  to  be  issued,  and  the  name  of  the  warehouse 
shall  invariably  be  specified  in  such  receipt. 

Delivery  to  holder  of  receipt : 

That  on  the  presentation  and  return  to  the  warehouseman  of 
any  public  warehouse  receipt  issued  by  him  and  properly  in- 
dorsed, and  the  tender  of  all  proper  warehouse  charges  upon  the 
property  represented  by  it,  such  property  shall  be  deliverable 
immediately  to  the  holder  of  such  receipt,  but  no  pubhc  ware- 
houseman who  shall  issue  receipts  for  goods  shall  under  any  cir- 
cumstances or  upon  any  order  or  guarantee  whatsoever  deliver 
the  property  for  which  such  receipts  have  been  issued,  until 
the  said  receipt  will  have  been  surrendered  and  cancelled,  and 
in  default  of  the  strict  compliance  with  the  provisions  of  this 
section  of  this  act,  he  shall  be  held  liable  to  the  legal  holder  of 
the  receipt  for  the  full  value  of  the  property  therein  described, 
as  it  appeared  on  the  day  of  the  default,  and  shall  furthermore 
be  liable  to  the  special  penalties  herein  provided,  in  addition  to 
the  existing  penalty  attached  to  the  crime  of  obtaining  money 
or  goods  under  false  pretenses,  or  aiding  and  abetting  therein. 
Upon  delivery  of  the  goods  from  the  warehouse  upon  any  re- 
ceipt, such  receipt  shall  be  plainly  marked  in  ink  across  its 
face  with  the  word  "cancelled,"  with  the  name  of  the  person 
cancelling  the  same,  and  shall  thereafter  be  void,  and  shall  not 
again  be  put  in  circulation. 

Limitation  of  liability — Prohibited  : 

That  no  public  warehouseman  shall  insert  in  any  public  ware- 
house receipt  issued  by  him  any  language  limiting  or  modify- 
ing his  liabilities  or  responsibilities  as  imposed  by  the  laws  of 
this  state,  excepting  not  accountable  for  leakage  or  deprecia- 
tion. 

Negotiability : 

That  the  receipts  issued  against  property  stored  in  public 
warehouses,  as  herein  provided  for,  shall  be  negotiable  and 
transferable  by  indorsement  in  blank  or  by  special  indorsement, 
and  deliverv  in  the  same  manner  and  to  the  same  extent  as 


294  LOUISIANA    LAWS. 

bills  of  exchange  and  promissory  notes  now  are,  without  other 
formality,  and  the  transferee  or  holder  of  such  public  ware- 
house receipt  shall  be  considered  and  held  as  the  actual  and 
exclusive  owner,  to  all  intents  and  purposes,  of  the  property 
herein  described,  subject  only  to  the  lien  and  privilege  of  the 
public  warehouseman  for  storage  or  other  warehouse  charges; 
provided,  however,  all  such  public  warehouse  receipts  as  shall 
have  the  words  ''not  negotiable"  plainly  written  or  stamped 
on  the  face  thereof,  shall  be  exempt  from  the  provisions  of 
this  section;  and  provided,  further,  tliat  no  public  warehouse- 
man shall  issue  warehouse  receipts  against  his  own  property 
in  his  own  warehouse,  but  upon  sale  of  such  property  in  good 
faith,  may  issue  to  the  purchaser  his  public  warehouse  receipt 
in  form  and  manner  as  herein  provided,  which  issue  and  de- 
livery of  the  receipt  shall  be  deemed  to  complete  the  sale,  and 
shall  constitute  the  purchaser  full  owmer,  as  aforesaid,  of  the 
property  therein  described.  Nothing  in  this  last  clause  shall 
be  construed  to  exempt  the  issues  of  said  receipt  for  his  own 
goods  in  his  own  public  warehouse  from  comphdng  \\ith  and 
being  subject  in  all  respects  to  all  the  other  sections  and  pro- 
visions of  this  act. 

Penalties : 

That  any  public  warehouseman  w^ho  violates  any  of  the  pro- 
\'isions  of  this  act  shall  be  deemed  guilty  of  a  criminal  offense, 
and  upon  indictment  and  conviction  thereof  shall  be  fined  at 
the  discretion  of  the  court  in  any  sum  not  exceeding  five  thou- 
sand dollars  (.S5,000)  or  be  imprisoned  in  the  state  penitentiary 
not  exceeding  five  years,  or  both. 

Act  not  applicable  to  private  warehonses : 

That  nothing  in  tliis  act  shall  be  construed  to  apply  to  private 
warehouses,  or  to  tTie  issue  of  receipts  by  their  owners  or  man- 
agers under  existing  laws,  or  to  prohibit  public  w^arehousemen 
from  issuing  such  recei]5ts  as  are  now^  issued  by  private  Avare- 
housemen  under  existing  law^s,  provided,  that  such  private  re- 
ceipts issued  by  public  warehousemen  shall  never  be  written  on 
a  form  or  blank  indicating  that  it  is  issued  from  a  public  ware- 
house, but  shall  on  the  contrary  bear  on  its  face  in  large  char- 


LOUISIANA.  295 

acters,    the  words  "  Not  a  Public  Warehouse  Receipt,"  in  ad- 
dition to  any  form  of  words  imposed  by  laws  heretofore  in  force. 

Repealing  clause : 

That  all  laws  and  parts  of  laws  in  conflict  with  this  act  be 
and  are  hereby  repealed  in  so  far  as  they  conflict.  Laws,  1888, 
No.  156. 

Granting  a  special  lien  and  privilege  to  persons  who  sell  ag- 
ricultural products  of  the  United  States  in  chartered  cities  and 
towns  of  this  state,  on  said  products  for  the  space  of  five 
days  after  the  delivery  of  the  same ;  and  to  repeal  conflicting 
laws. 

Be  it  enacted  by  the  General  Assembly  of  the  State  of  Louisiana  : 
That  any  person  who  may  sell  the  agricultural  products  of  the 
United  States  in  any  chartered  city  or  town  of  this  state  shall 
be  entitled  to  a  special  lien  and  privilege  thereon,  to  secure  the 
payment  of  the  purchase  mone}^  for  and  during  the  space  of  five 
days  only  after  the  day  of  delivery ;  within  which  time  the  ven- 
dor shall  be  entitled  to  seize  the  same  in  whatsoever  hands  or 
place  it  may  be  found,  and  his  claim  for  the  purchase  money 
shall  have  preference  over  all  others,  and  especially  over  any 
warehouse  pr'vilege  or  claim  for  warehouse  cha  ges,  or  any  priv- 
ilege or  claim  by  the  holder  of  any  warehouse  receipt.  If  the 
vendor  gives  a  written  order  for  the  delivery  of  any  such  prod- 
uce and  shall  say  therein  that  it  is  to  be  delivered  without 
vendor's  privilege,  then  no  lien  shall  attach  thereto. 

Be  it  further  enacted,  etc. :  That  all  laws  and  parts  of  laws, 
and  especially  any  part  of  act  No.  156  of  the  Legislature 
of  1888— approved  July  12,  1888— in  conflict  with  this 
act,  be  and  the  same  are  hereby  repealed.  Laws,  1890, 
No.  63. 

An  act  authorizing  the  sale  by  warehousemen  of  goods  re- 
maining in  warehouses,  on  which  charges  remain  due  and  un- 
paid; to  provide  for  the  disposition  of  the  proceeds,  and  to  re- 
peal conflicting   laws. 

That  whenever  any  goods,  wares  or  merchandise  shall  have 
remained  on  storage  in  any  warehouse  in  this  state,  for  a  period 
of  one  year,  and  the  charges  thereon  or  storage  and  expenses 
shall  have  remained   due  and  payable  for  a  period  exceeding 


296  LOUISIANA    LAWS. 

six  months,  it  shall  be  lawful  for  the  warehouseman  to  gi^■e 
notice  in  writing  of  thirty  days  to  the  person  who  has  stored 
said  goods,  to  pay  such  charges  and  expenses;  and  if  the  same 
are  not  paid  within  thirty  days  after  giving  such  notice,  it  shall 
then  be  lawful  for  such  warehousemen  to  sell  said  property 
for  cash,  at  public  auction,  by  a  duly  licensed  auctioneer  after 
having  duly  advertised  the  terms,  time  and  place  of  such  sale 
for  ten  days  in  the  manner  required  for  judicial  advertisements 
of  the  sale  of  movables;  provided  that  a  separate  advertise- 
ment of  each  article  to  be  sold  shall  not  be  required,  but  one 
general  advertisement  shall  be  sufficient  to  authorize  the  sale 
of  said  property,  the  name  or  names  of  the  parties  storing  the 
same,  however,  to  be  given. 

That  the  aggregate  proceeds  of  sales  under  such  advertise- 
ment shall  be  applied  in  the  first  place  to  the  payment  of 
charges  and  expenses  for  storage  and  expenses  for  advertise- 
ment and  sale;  and  the  residue  if  any  shall  be  retained  by  the 
warehouseman  for  the  period  of  three  months  from  the  date  of 
sale,  and  if,  during  the  said  period,  the  owners  of  any  of  the 
property  sold  shall  present  themselves,  they  shall  be  entitled  to 
receive  the  proceeds  of  the  sale  of  their  property,  less  the  de- 
ductions hereinbefore  authorized  to  be  made,  and  the  balance, 
if  any,  remaining  unclaimed  after  the  expiration  of  three  months 
as  aforesaid  shall  be  paid  into  the  treasury  of  the  state  of 
Louisiana  to  the  credit  of  the  general  school  fund  of  the  state 
of  Louisiana  to  be  disbursed  in  such  manner  as  other  money  to 
the  credit  of  the  general  school  fund  of  Louisiana,  and  the  said 
warehouseman  shall  be  released  from  all  liability  on  account  of 
the  property  so  sold. 

That  no  warehouseman  shall  have  the  right  to  take  the  bene- 
fit of  this  act  \mless  the  first  section  of  this  act  shall  have  been 
printed  or  WTitten  on  the  receipt  given  for  the  property. 

That  all  laws  or  parts  of  laws,  contrary  to  or  inconsistent 
with  the  provisions  of  this  act,  be  and  the  same  are  hereby  re- 
pealed.    Laws,  1894,  No.  85. 

All  pledges  of  movable  property  may  be  made  by  private 
writing,  accompanied  by  actual  delivery;  and  the  delivery  of 
property  on  deposit  in  warehouses,  shall  pass  by  private  assign- 


LOUISIANA.  297 

ment  of  the  warehouse  receipt,  so  as  to  authorize  the  owner  to 
pledge  such  property ;  and  such  pledge  so  made,  without  further 
formalities,  shall  be  vahd,  as  well  against  third  persons  as  against 
the  pledgees  thereof,  if  made  in  good  faith.''  Art.  3158  R. 
Civ.  Code. 


Note.     Tiie  rlinrters  of  some  cities  and  towns  in  Louisiana  vest  munici- 
pal authorities  with  certain  control  over  warehouses  located  therein. 


298  LOl'ISIANA    DKCISIOXS. 

DECISIONS  AFFECTING  WAREHOUSEMEN. 

B. 

Warehouseman — Responsibility  in  general. 

It  seems  that  a  warehouseniaii  will  be  held  responsible  for 
the  loss  of  property  stored,  in  all  cases  where  he  fails  to  show 
that  the  loss  occurred  without  his  fault.  Thomas  v.  Darden, 
22  La.  A.  413. 

Same — No  presumption  of  ownership. 

The  presumption  of  ownership  resulting  from  possession  is 
not  applicable  to  factors,  brokers  and  other  avowed  agents,  with 
respect  to  money  or  property  intrusted  to  them  for  the  special 
purposes  of  their  vocation.  Succession  of  Hardy  Boisblanc,  32 
La.  A.  109. 

Same — Goods  held  .■subject  to  order  of  depositor. 

A  depositary  is  bound,  in  the  absence  of  any  judicial  pro- 
ceedings, to  hold  the  property  deposited,  subject  to  the  order 
of  the  depositor,  C.  C.  sees.  2920,  2921  and  2929.  A  deposi- 
tary cannot  therefore  be  held  liable  in  damages,  in  the  absence 
of  fraud,  for  obeying  the  orders  of  the  depositor.  Britten  v. 
Aymar  et  al,  23  La.  A.  63. 

Same — Failure  to  obey  instructions — Liability. 

Failure  to  obey  instructions  in  regard  to  goods  intrusted  to 
the  care  of  commission  merchants  will  cause  them  to  incur  a 
liability  to  the  owners  for  the  value  thereof.  Copes  v.  Phelps 
&  Co.,  24  La.  A.  562. 

Common  carrier  not  entitled  to  licem^e  as  warehousemen. 

Permanent  storage  is  not  incidental  to  railroad  business, 
hence  carrier  is  not  entitled  to  a  license  as  warehouseman  under 
Act  No.  101  of  1SS6,  on  ground  that  the  storage  of  goods  is 
incidental  to  its  business.  State  v.  Southern  Pac.  Co.,  52  La. 
A.  1822. 

Default  by  warehousemen — Recovery. 

The  putting  in  default  of  a  depositary  is  a  prerequisite  to 


LOUISIANA.  299 

enable  the  depositor  to  recover,  where  tlie  thing  deposited  has 
been  lost  or  destroyed.     James  v.  Greenwood,  20  La.  A.  297. 

Title — Depositary  cannot  impeach. 

A  depositary  cannot  be  permitted  to  introduce  evidence  to 
impeach  the  title  of  tli(^  depositor.  Graham  &  Anderson  v. 
Williams,  21  La.  A.  51)4. 

Goods  pledged  by  factor — Oio7ier  protected — Surrender  under 
judicial  process — Warehouseman  not  guarantor  of  the  title  of 
stored  property. 

The  owner  of  cotton  shipped  the  same  to  his  factor  with  the 
direction  to  hokl  it  until  a  better  price  could  be  obtained.  With- 
out the  consent  of  the  owner,  the  factor  stored  the  property  and 
borrowed  money  upon  the  warehouse  rec(npt  therefor  as  collat- 
eral. The  factor  subsequently  failed.  Li  an  action,  brought 
by  the  owner,  against  the  lender,  the  former  ol:)tained  judgment 
and  then  possession  of  the  property,  giving  bond  on  appeal. 
The  appellate  court  affirmed  the  judgment  of  the  low^er  court, 
holding  that  the  lender,  by  the  indorsement  of  the  warehouse 
receipt  to  him,  took  only  such  title  as  the  factor  had,  and  that 
the  pledge  by  the  factor  w^as  wrongful  and  invalid  as  to  the 
plaintiff.  Further,  that  the  delivery,  by  the  w^arehouseman,  of 
the  property  under  a  judicial  writ  was,  in  legal  effect,  a  com- 
pliance with  the  terms  of  the  warehouse  receipt,  which  stated 
that  delivery  would  only  be  made  upon  the  return  of  such  re- 
ceipt.    Insurance  Co.  v.  Kiger,  103  U.  S.  352. 

Conversion — Responsible  for  value. 

A  depositary  who  sells  sugar  deposited  with  him  and  converts 
the  proceeds  to  his  own  use  is  responsible  to  the  owner  for  its 
value.     Short  v.  Lapeyreuse,  24  La.  45. 

Same — Sale  by  depositary  a  theft. 

A  depositary  who  sells  the  deposit  commits  a  theft.  Mc- 
Gregor et  al.  V.  Ball,  4  La.  289. 

E. 

Factor  and  principal— Nature  of  their  relations. 

The  relation  between  factor  and  princij^al  is  not  the  ordinary 


800  LOUISIANA    DECISIONS. 

relation  between  debtor  and  creditor.  It  is  a  relation  of  trust 
and  confidence.  It  creates  a  contract  in  the  natun^  of  that 
which  is  known,  in  the  civil  law,  as  the  irregular  deposit.  The 
factor  is  to  be  considered  as  undertaking  to  hold  the  funds 
confided  to  him  by  his  principal  as  subject  to  his  order,  and  to 
be  ready  to  pay  them  ovoi'  to  him,  doduc'tin<2;  only  his  own 
charges  and  advances  made  in  the  course  of  his  employment, 
and  he  cannot  retain  the  funds  on  the  ground  of  having  i)aid 
other  claims  against  the  principal,  which  he  had  received  notice 
from  the  principal  not  to  pay.  Nolan  v.  Shaw  &  Co.,  6  La.  A. 
40. 

Factors — Nature  of  contracts  with. 

The  contract  implied  between  principal  and  factor,  in  the 
ordinary  transaction  of  business,  partakes,  in  some  respects, 
of  the  nature  of  the  contracts  both  of  loan  and  irregular  de- 
posit. Their  current  accounts  are  necessarily  provisional  until 
settled,  and  even  after  settlement  may  be  rectified  by  either 
party  on  account  of  errors  or  omissions,  subject  to  which  every 
settlement  is  held  to  be  made.  Bloodworth  v.  Jacobs  et  ah, 
2   La.  A.  24. 

Same — Same — Effect  upon  third  persons. 

It  was  never  contemplated  by  the  lawmakers  that  the  mere 
fact  that  a  factor  should  be  the  holder  of  a  warehouse  receipt, 
taken  out  by  himself  in  his  own  name,  should  confer  upon  par- 
ties the  right  to  deal  with  a  factor,  and  to  absolutely  ignore, 
under  full  protection,  the  relations  which  he  has  to  the  prop- 
erty and  to  its  owner.  Holten  &  Winn  v.  Hubbard  &  Co.  et  al., 
49La.  A.  715. 

Same — Pledge — Own  debts. 

A  factor  cannot  pledge  for  his  own  debts,  property  consigned 
to  him,  nor  can  he  give  it  in  payment  for  his  own  debts.  Had- 
urin  V.  Fisk,  1  La.  A.  74:;  Lallande  v.  His  Creditors,  42  La.  A.  705; 
Holton  &  Winn  v.  Hubbard  &  Co.  et  al.,  49  La.  A.  715. 

Same — Same — Same — Defense. 

A  factor  cannot  pledge  goods  of  his  principal's  for  his  own 


LOUISIANA.  301 

debts,  and  where  the  pledgee  is  cognizant  of  tlie  ownership,  he 
cannot  in  an  action  by  (he  owner,  avail  himself  of  the  defense 
that  he  has  been  misled  by  any  act  or  omission  of  such  owner. 
Bonniot  &  Co.  v.  Fuentes  &  Co.,  10  La.  A.  70. 

Same — Same — Creditor  of  owner. 

A  factor  who  holds  a  warehouse  receipt  may  pledge  the  goods 
covered  by  the  receipt,  to  the  extent  that  he  is  a  creditor  of  the 
principal.  Chambers,  Holton  &  Winn  v.  Hubbard  &  Co.  et  al., 
51  La.  A.  887. 

Same — Investment  of  customer's  funds. 

A  cotton  factor,  who  by  direction  of  his  customer,  invests  the 
latter's  funds,  is  not  responsible  to  him  foi-  the  illegality  of  the 
investment.  Allen,  West  &  Brush  v.  Wheatstone  et  al,  35  La. 
A.  846. 

Commission  merchants — Own  debt — Trustee. 

A  factor  or  commission  merchant  who  resides  in  the  city  of 
New  Orleans,  and  who  accepts  a  consignment  from  a  person 
acting  as  trustee,  in  a  state  where  such  titles  are  universally 
recognized,  cannot  compensate  the  claim  against  himself  for  the 
proceeds  of  the  articles  consigned,  with  a  debt  held  by  him  against 
the  person  from  whom  the  trust  is  derived.  Bell  v.  Powell,  23 
La.  A.  796. 

I. 

Change  of  form — Property  in  principal. 

The  product  or  substitute  of  a  thing  follows  the  nature  of  the 
thing  itself,  so  long  as  it  can  be  ascertained  to  be  such.  So  the 
property  of  a  principal  intrusted  to  a  factor  for  a  special  purpose 
is  considered  still  to  belong  to  the  principal,  notwithstanding 
any  change  of  form  it  may  have  undergone,  so  long  as  it  can  be 
identified.     Bloodworth  v.  Jacobs  et  al.,  2  La.  A.  24. 

N. 

Loss  by  fire — Liability — Diligence. 

A  depositary  is  not  answerable,  in  any  case,  for  acts  produced 
by  overcoming  force,  such  as  fire,  unless  he  fail  to  use  proper 
diligence.     McCullom  v.  Porter,  Thomas  &  Foley,  17  La.  A.  89. 


302  LOUISIANA    DECISIONS. 

Liability  for  cotton  unaccounted  for. 

The  proprietors  of  a  cotton  yard  and  press  will  be  held  re- 
sponsible for  cotton  deposited  in  their  warehouse,  and  which  is 
not  accounted  for.     Marr  ei  al.  v.  Barnes,  1  R.  190. 

Prior  and  subsequent  damage  to  goods — Burden  of  proof. 

Where  defendant  shows  that  cotton  was  damaged  before  he 
was  authorized  to  take  jiossession  of  it,  it  is  incumbent  on  plain- 
tiff to  show  that  other  damages  were  sustained  and  the  extent 
thereof,  before  he  can  recover.  Farley,  Jury  &  Co.  v.  Van- 
vdckle  &  Co.,  19  La.  A.  9. 

Overpowering  force — Means  to  preserve  the  goods. 

In  order  to  avoid  liability  for  the  loss  of  cotton  on  storage,  the 
warehouse  keeper  must  show  that  the  loss  occurred  without  his 
fault.  He  cannot  be  relieved  by  showing  simply  that  the  loss 
occurred  by  an  overpowering  force.  He  must  also  show  that  he 
used  all  possible  means  to  preserve  it.  Schwartz,  Kauffman  & 
Co.  V.  Baer,  21  La.  A.  601 ;  Levy  et  al.  v.  Bergeron,  20  La.  A.  290. 

Same — Same — Insufficient  protection. 

Where  the  defendant,  the  keeper  of  a  public  warehouse,  re- 
ceived a  lot  of  cotton  on  storage,  antl  gave  a  receipt  therefor,  it 
is  not  sufficient  excuse  for  not  delivery,  when  demanded,  for 
him  to  show  that  soldiers  were  encamped  near  the  warehouse 
and  that  it  was  commonly  believed  that  they  and  the  freedmen 
were  stealing  the  cotton;  that  the  back  door  of  the  warehouse 
could  easily  have  been  forced  open  at  night,  and  the  cotton 
taken  out,  and  then  closed  again,  without  being  discovered  in 
the  daytime.     Thomas  v.  Darden,  22  La.  A.  413. 

Same — Depositary  not  liable. 

Where  the  depositary  is  not  able  to  resist  the  seizure  and  con- 
sequent custody  of  deposited  cotton  by  the  authorities  of  the 
Ignited  States,  he  could  not  be  held  liable  in  damages  for  his 
failure  to  deliver  it  upon  demand  by  depositor.  Britton  v. 
Aymar  et  al,  23  La.  A.  63;  McCuUom  v.  Porter  et  al,  17  La.  A. 
89;  Yale  v.  Oliver  &  Drake,  21  La.  A.  454. 


LOUISIANA.  303 

Same — Burden  of  proof. 

Where  defendant  having  shown  a  sufficient  legal  excuse  (the 
cotton  having  been  taken  by  tlie  Icdcial  forcesy  tor  not  deliver- 
ing the  pr()j)erty,  the  burden  of  proof  fails  on  plaintifl'.s,  before 
they  can  recover,  to  show  that  the  cotton  was  lost  to  them 
through  the  fault  or  neglect  of  defendant.  Babcock  &  Ker- 
nochan  v.  Murphy,  20  La.  A.  399. 

When  not  overpowering  force,  default  not  necessary. 

Where  an  agent  or  mandatory,  or  person  having  property  on 
deposit  at  a  time  when  he  is  not  menaced  by  any  overpowering 
force,  allows  the  property  to  be  taken  from  his  possession  with- 
out the  consent  or  authority  of  the  owner,  he  becomes  respon- 
sible therefor,  and  the  putting  of  him  in  default  by  demand  and 
refusal  is  unnecessary.     James  v.  Greenwood,  20  La.  A.  297. 

0. 

Same — Measure  of  damages — When  cotton  held  to  aivait  better 
prices. 

Where  cotton  was  stored  and  held,  by  a  warehouseman,  by 
direction  of  the  owner  in  order  to  obtain  better  prices  than  those 
prevailing,  and  the  same  was  converted  and  sold,  the  measure 
of  damages  is  not  the  price  obtained  for  the  cotton  but  the  best 
price  prevailing  within  a  few  months  after  the  sale.  Pierson  v. 
Canal  Bank,  106  La.  305;  Pierson  v.  Metropolitan  Bank,  106 
La.  298. 

P. 

Insurance — Custom. 

Where  the  practice  or  custom  of  a  factor  is  to  insure  consign- 
ments of  produce,  and  this  is  brought  to  the  knowledge  of  his 
consignor  by  uniform  charges  for  insurance  in  his  accounts 
rendered,  the  factor  will  be  deemed  to  have  continued  that 
custom  until  he  gives  notice  to  the  consignor  of  the  change,  and 
he  is  responsible  for  any  loss,  consequent  upon  his  failure  to 
insure,  before  such  notice  reaches  the  consignor.  Area  &  Lyons 
v.Milliken,  35  La.  A.  1150. 


304  LOUISIANA    DECISIONS. 

Warehouse  receipt — Issue  to  factor  and  in  his  name  ami  used  as 
collateral — Owner  protected. 

The  owner  who  ships  under  a  bill  of  lading  and  hands  the  bill 
to  his  factor  may  be  said  to  have  more  or  less  connection  with 
that  instrument  when  it  is  subsequently  advanced  by  a  third 
party  as  the  basis  of  rights  predicated  by  him  u])on  possession 
of  the  bill  by  the  factor,  particularly  if  the  delivery  of  the  prop- 
erty is  directed  to  be  made  to  the  factor  or  his  order.  If  after 
the  cotton  has  been  received  and  the  bill  of  lading  therefor  has 
fully  carried  out  its  purpose  of  delivery,  the  factor  stores  the 
cotton,  takes  a  receipt  for  the  same  in  his  own  name  from  the 
warehouse  and  makes  use  of  the  receipts  as  a  basis  for  credit, 
the  warehouse  receipt  evidences  a  contract  with  which  the  owner 
is  disconnected;  it  is  an  original  transaction  between  the  factor 
in  his  own  name  and  the  proprietors  of  the  warehouse  to  which 
the  owner  is  not  "a  party"  though  he  has  an  interest  in  the 
subject-matter.  It  is  clear  that  any  contract  by  which  one 
person  attempts  to  divest  another  of  his  j^roperty,  without  the 
owner's  consent,  express  or  implied,  or  through  due  process  of 
law,  is  without  force.  Holton  &  Winn  v.  Hubbard  et  al.,  49 
La.  A.  715. 

Same — Same — Interest  of  factor  protected. 

To  the  extent  that  a  factor  is  a  creditor  of  his  principal  and 
holds  a  warehouse  receipt  for  his  claim,  the  principal  is  witliout 
interest  to  cjuestion  the  form  of  the  receipt;  a  factor,  being, 
under  operation  of  law,  subrogated  to  the  rights  of  his  principal 
to  the  extent  of  which  he  is  his  principal's  creditor.  Chambers, 
Holton  &  Wimi  v.  Hubbard  &  Co.  et  al.,  51  La.  887. 

Same — Negotiability — Pledge  by  factor. 

A  warehouseman  had  issued  receipts  for  cotton  stored  with 
him  to  one  who  represented  himself  as  the  owner  thereof,  but 
who  was  in  reality  only  the  factor  of  the  owner  and  had  no  in- 
terest in  the  property  stored.  Such  depositor  subsequently 
pledged  the  receipts  to  secure  the  payment  of  a  loan  made  to 
him.     In  an  action  brought  by  the  owner  against  the  lender, 


LOUISIANA.  305 

it  was  held  that  the  latter,  by  the  negotiation  of  the  i-oceiijts 
to  him,  took  only  such  title  as  the  factor  had,  and  a  judgment 
awarding  the  property  to  the  owner  was  affirmed.  The  pos- 
session and  transfer  of  the  receipt  held  to  be  eciuivalent  only  to 
possession  and  transfer  of  the  property  itself.  Insurance  Co.  v. 
Kiger,  103  U.  S.  352. 

Same — Rights  of  pledgee  and  of  administrator  of  depositor. 

A  warehouseman  issued  a  warehouse  receijjt  for  two  hundred 
and  twenty-five  bales  of  cotton  then  actually  in  his  warehouse 
but  without  specification  on  the  receipt  of  the  particular  bales 
of  cotton  received,  deliverable  on  surrender  of  the  receipt,  in- 
dorsed by  the  original  holder.  The  depositor  pledged  this  re- 
ceipt to  one  of  his  creditors  by  indorsement  of  the  receipt,  and 
the  pledgee  gave  immediate  notice  of  the  pledge  to  the  ware- 
houseman. The  depositor  subsequently  deposited  other  cotton 
in  the  same  warehouse,  receiving  receipts  for  the  same,  also 
without  designating  the  particular  cotton  covered  by  it.  He 
then  died.  At  the  time  of  his  death  only  seventy  bales  remained 
in  the  hands  of  the  warehouseman,  the  balance  having  been  de- 
livered under  orders  of  court  to  parties  who  had  successfully 
claimed  ownership  thereof.  In  a  contest  for  the  remaining 
cotton  between  the  pledgee  of  the  warehouse  receipt  and  the 
administrator  of  the  succession  of  the  depositor,  held  that  the 
former  was  entitled  to  recover  the  cotton  (citing  Cutters  v. 
Baker,  2  La.  A.  572;  Williams  v.  Finer,  10  La.  A.  277;  Cormmach 
V.  Floyd,  10  La.  A.  351 ;  Connery  v.  Webb,  12  La.  A.  272;  Newton 
V.  Gray,  10  La.  A.  67).  State  Nat.  Bank  v.  Bryant  &  Mathers, 
49  La.  A.  467. 

Same — Fledge  of — Statute  m,ust  be  strictly  complied  with — Re- 
ceipt must  represent  specific  goods. 

Act  No.  72  of  1876  requires  that  warehouse  receipts  shall  be 
paragraphed '  •  for  hypothecation  "  and  section  4  of  the  act  requires 
the  making  of  an  affidavit.  In  a  case  where  there  was  a  failure 
to  comply  with  the  requirements  of  these  two  sections,  it  was 
held  that  there  was  not  a  valid  pledge  of  the  property  repre- 
sented by  the  receipts.  A  warehouse  receipt  in  the  form  pre- 
20 


306  LOUISIANA    DKCISIONS. 

scribed  b}-  the  above  act  must  stand  for  the  goods  themselves, 
in  such  a  way  that  its  deliver}''  will  operate  as  a  delivery  of  the 
goods ;  but  in  order  that  this  should  be,  the  receipt  must  repre- 
sent the  specific  goods,  or,  at  any  rate,  must  represent  a  specific 
part  of  a  common,  or  uniform  mass ;  and  a  lot  of  cotton  bales 
cannot  be  treated  as  a  common  or  uniform  mass,  especially 
when,  in  addition  to  the  physical  disparity  of  the  component 
bales  there  is  a  moral  and  legal  disparity.  The  nature  of  the 
pledge  of  warehouse  receipts  is  regulated  in  this  state  by  the 
above  mentioned  act  and  non -conformity  with  the  statute  is 
fatal  to  any  attempted  pledge.  Pierson  v.  Metropolitan  Bank, 
106  La.  298 ;  Pierson  v.  Canal  Bank,  106  La.  305. 

Same — Deposited  by  a  factor  and  used  as  collateral  by  him — 
Judgment — Warehouseman  protected. 

A  warehouseman  who  had  received  cotton  on  deposit  from  a 
factor  issued  Ms  warehouse  receipt  for  the  same,  deliverable  to 
the  depositor  or  his  order,  only  on  surrender  of  the  certificate. 
The  factor  who  had  deposited  the  cotton  in  his  own  name  in  the 
warehouse  pledged  the  warehouse  receipt  to  one  of  his  own 
creditors.  Certain  parties  claimed  a  portion  of  the  property 
in  the  hands  of  the  warehouseman,  alleging  that  the  factor  was 
without  authority  to  pledge  the  cotton.  The  warehouseman 
called  upon  the  factor  who  had  deposited  the  cotton  and  on  the 
holders  of  the  warehouse  receipts,  that  they  might  oppose 
the  restitution,  but  judgment  M'as  rendered  ordering  the  ware- 
houseman to  surrender  the  cotton  to  the  claimants.  Held  that 
the  deliver}'  of  the  cotton  by  the  warehouseman  to  the  claim- 
ants, under  the  judgment,  j^rotected  him  against  any  liabihty 
upon  the  receipts.  C.  C.  2934.  Bank  v.  Bryant  &  Mathers, 
49  La.  A.  467. 

Same — Attached  to  draft — Surrender  on  acceptance. 

In  the  absence  of  instructions  a  collecting  agent  is  au- 
thorized to  infer  that  warehouse  receipts  were  annexed  to 
a  draft  to  secure  its  acceptance,  and  were  to  be  surrendered 
upon  acceptance.  Moore  &  Sinnott  v.  La.  Nat.  Bank,  44  La.  A. 
99. 


LOUISIANA.  307 

R. 

Bills  of  lading — Functions  of. 

The  function  of  a  bill  of  lading  is  different  from  that  of  ordi- 
nary commercial  paper.  It  is  not  a  representative  of  money, 
used  for  the  transmission  of  money,  or  the  payment  of  debts. 
It  is  merely  a  contract  for  the  performance  of  a  certain  duty 
—a  representative  of  goods  or  personal  property  to  be  delivered. 
Lallande  v.  His  Creditors,  42  La.  A.  705. 

Same— Stipulations  against  loss  by  jire— Cannot  excuse  negli- 
gence. 

A  stipulation  in  a  bill  of  lading,  for  the  transportation  of  cot- 
ton, that  the  carrier  shall  not  be  liable  for  damage  occasioned 
by  fire,  will  not  exonerate  it  from  responsibility  for  loss  or  dam- 
age from  this  cause  if  the  fire  be  occasioned  through  the  fault 
or  ordinary  negligence  of  the  agents,  servants  or  employees  of 
the  carrier.  Maxwell  &  Putnam  v.  Southern  Pac.  R.  R.,  48 
La.  A.  385. 

Same — Not  negotiable  paper. 

Notwithstanding,  by  statute,  bills  of  lading  may  be  made 
negotiable  in  form,  they  do  not  become  possessed  of  all  the 
incidents  of  negotiability  that  are  attributes  of  bills  and  notes. 
Lallande  v.  His  Creditors,  42  La.  A.  705. 


308  MAINE    LAWS. 


CHAPTER  XIX. 
MAINE. 

LAWS   PERTAIMXG   TO   WAREHOUSEMEN. 

How  far  shipper,  factor  or  aj?ent  shall  be  considered  the 
owner  of  ^oods  under  his  control : 

Every  person,  in  whose  name  merchandise  is  forwarded,  every 
factor  or  agent  intrusted  with  the  possession  of  any  bill  of  lad- 
ing, custom  house  permit,  or  warehouse  keeper's  receipt  for  the 
delivery  of  such  merchandise,  and  every  such  factor  or  agent 
not  having  the  documentary  evidence  of  title,  who  is  intrusted 
with  the  possession  of  merchandise  for  the  purpose  of  sale,  or 
as  security  for  advances  to  be  made  thereon,  shall  be  deemed 
the  true  owner  thereof,  so  far  as  to  give  validity  to  any  lien  or 
contract  made  by  such  shipper  or  agent  with  any  other  person 
for  the  sale  or  disposal  of  the  wliole,  or  any  part  of  such  mer- 
chandise, money  advanced,  or  negotiable  instrument,  or  other 
obligation  in  writing,  given  by  such  person  upon  the  faith 
thereof.     Rev.  Stat.  Me.  1883,  ch.  31,  sec.  1. 

Not  to  extend  to  prior  demands  against  agent : 

No  person,  taking  such  merchandise  in  deposit  from  such 
agent  as  security  for  antecedent  demand,  shall  thereby  acquire 
or  enforce  any  right  or  interest  therein  other  than  such  agent 
could  then  enforce.     Id.  ch.  31,  sec.  2. 

Rights  of  the  true  owner  in  such  cases : 

But  the  true  owner  of  such  merchandise,  upon  repayment  of 
the  money  so  advanced,  restoration  of  the  security  so  given,  or 
satisfaction  of  all  legal  liens,  may  demand  and  receive  his 
property,  or  recover  the  balance  remaining  as  the  produce  of 
the  legal  sale  thereof,  after  deducting  all  proper  claims  and 
expenses  thereon.     Id.  ch.  31,  sec.  3. 


MAiNK.  :^09 

Title  to  goods  in  poss^'ssiou  of  warelioiisciiUMi  passes  to 
purchaser,  or  pledi?ee,  by  iiulorseiiient  of  warelioiiseiiiaii's 
receipt : 

The  title  to  nu'rcliaiKli.se  stored  in  a  public  warehouse,  or  on 
the  wharves  and  j)remises  of  the  warehouseman,  and  in  his  pos- 
session, passes  (o  a  purchaser  or  i)ledgee,  in  <i;(>()(l  t;iitli.  l)y  the 
indoi'senient  to  such  |)ur('haser,  or  pledgee,  hut  not  in  l)lank, 
of  the  warehouseman's  receipt  therefor,  signed  1)\-  the  person 
to  whom  the  receipt  was  originally  given,  or  by  an  indorsee  of 
the  receipt,  and  ixH'orded  in  the  books  of  the  warehouseman 
with  whom  such  iiuM-chandise  is  stored.     Id.  ch.  31,  sec.  4. 

Account  of  warehouse  IransacHons  to  be  kept: 

Each  warehouscMuan  shall  keej)  books  in  which  shall  be  en- 
tered an  account  of  all  transactions  relating  to  the  warehousing, 
storing  and  insuring  of  merchandise,  th(>  issuing  of  warehouse- 
man's cei'tificat(^s,  and  th(>  indorsenumt  then^of,  which  books 
shall  be  open  to  the  ins])ection  of  any  person  interested  in  the 
property  stored  in  his  warehouse.     Id.  ch.  ol,  s(>c.  5. 

Goods  attachable  as  goods  of  person  receipted  to  : 

Merchandise  stored  with  a  public  warehouseman  may  be  at- 
tached as  the  propcM'ty  of  the  person  named  in  the  warehouse- 
man's receipt  th(M-efor,  when  no  indorsement  of  such  receipt 
has  been  recorded  on  the  books  of  the  warehouseman;  and 
where  such  indorsement  has  be(Mi  I'ecorded,  may  be  attached 
as  the  property  of  th(>  last  indorsee  of  the  receipt,  shown  by  the 
books  of  the  warehouseman,  by  leaving  at  th(>  warehouse  where 
the  merchandise"  is  stored  a  coin'  of  the  writ,  with  a  co])v  of  so 
much  of  the  ofhcer's  return  thereon  as  relates  to  the  attaclunent 
of  such  merchandise.  And  an  attachment  so  mad(>  is  valid 
against  any  transfer  thereof,  the  evidence  of  which  is  not  re- 
corded in  the  books  of  the  wai"ehous(Mnan,  wlien  the  copy  of  the 
writ  is  so  left.     Id.  ch.  .'^I .  sec.  (5. 

Penalty  for  disposing  of  warehouseman's  certiflcate  with- 
out disclosing  attachntent: 

Whoever  indors(\s  or  assigns,  or  othei'wis(>  disposes  of  a  ware- 
houseman's certificate,  aftef  his  interest  in  the  property  de- 
scribed in  such  certilicate  has  been  attached,  without  ilisclosing 


310  MAINE    LAWS. 

the  attachment,  thereof  to  the  person  to  whom  such  certificate 
has  been  indorsed,  assigned,  or  disposed  of,  shall,  if  he  has 
knowledge  of  such  attachment,  be  punished  by  fine  not  exceed- 
ing five  thousand  dollars  and  imprisoned  in  the  state  prison 
not  exceeding  three  years,  or  by  imprisonment  in  jail  not  ex- 
ceeding one  year.     Id.  ch.  31,  sec.  7. 

Who  is  a  public  warehouseniau  : 

Whoever  advertises  or  offers  to  receive  merchandise,  on  storage 
for  other  parties,  is  a  public  warehouseman  for  the  purposes  of 
this  chapter.     Id.  ch.  31,  sec.  8. 

Grain,  etc.,  stored  in  public  warehouse  becoming  mixed — 
Proceedings  : 

When  grain  or  other  property  is  so  stored  in  a  public  ware- 
house that  different  lots  or  parcels  are  mixed  together,  so  that 
the  identity  of  the  same  cannot  be  accurately  preserved,  the 
warehouseman's  receipt  for  any  portion  thereof  shall  be  deemed 
a  valid  title  to  so  much  thereof  as  is  designated  in  said  receipt, 
without  regard  to  any  separation  or  identification.  Id.  ch.  31, 
sec.  9. 

The  following  section  is  hereby  added  to  chapter  thirty-one 
of  the  Revised  Statutes  : 

Goods,  etc.,  remaining  in  warehouse  one  year,  may  be 
sold  at  public  auction— Demand  shall  first  be  made  for  pay- 
ment of  charges  upon  person  depositing  goods — Notice  shall 
be  given  of  sale — How  proceedings  of  sale  shall  be  disposed 
of: 

AVhenever  goods,  merchandise  or  any  articles  of  personal 
property  shall  remain  in  a  public  warehouse  for  one  year  after 
the  expiration  of  the  time  for  which  the  charges  thereon  shall 
have  been  paid,  the  same  may  be  sold  at  public  auction,  subject 
to  the  following  conditions :  the  warehouseman  shall  first  demand 
payment  of  the  charges  thereon  by  registered  letter  directed  to 
the  person  who  shall  have  deposited  such  goods,  merchandise 
or  articles  of  personal  property  in  said  warehouse,  if  such  person 
shall  have  left  with  the  warehouseman  his  address  to  which  the 


MAINE.  811 

letter  may  be  directed.  After  such  demand,  or  in  cases  where 
no  address  shall  have  been  given  to  the  warehouseman  to  which 
such  letter  may  be  directed,  the  warehouseman  shall  give  thirty 
days'  notice  of  the  time  and  place  of  sale  in  a  public  newspaper 
published  in  the  city  or  town  where  the  warehouse  shall  be,  or 
if  no  public  newspaper  shall  be  published  in  such  city  or  town, 
then  in  any  public  newspaper  published  in  the  county  in  which 
such  city  or  town  shall  be;  said  notice  shall  contain  a  brief  de- 
scription of  the  property  to  be  sold,  with  such  marks  thereon 
as  may  serve  to  identify  it,  if  it  shall  be  so  marked,  together 
with  the  name  of  the  person  depositing  such  articles  in  said 
warehouse  and  the  name  of  the  owner  thereof  if  known;  and 
shall  specify  the  time  after  the  expiration  of  said  thirty  days 
and  the  place,  which  shall  be  in  the  city  or  town  where  the  ware- 
house shall  be,  at  which  the  sale  shall  be  made. 

The  proceeds  of  such  goods,  merchandise  or  articles  of  per- 
sonal property  so  sold,  after  deducting  the  charges  thereon, 
including  the  cost  of  publishing  such  notice  and  sale,  shall  be 
placed  to  the  credit  of  the  owner  of  the  goods,  merchandise  or 
other  articles  of  personal  property  sold,  if  known,  otherwise  to 
the  credit  of  the  person  depositing  said  goods,  merchandise  or 
articles  of  personal  property  in  the  books  of  the  warehouseman 
making  the  sale,  and  shall  be  paid  to  the  owner  thereof  on  de- 
mand, and  the  warehouseman  shall  not  be  liable  for  any  greater 
sum  than  shall  be  received  from  said  sale,  less  the  charges 
thereon.     Laws,  Me.  1897,  ch.  304,  p.  339. 

Larceny  by  night  in  a  dwelling  house,  or  at  any  time 
breaking  and  entering  certain  other  buildings,  vessel,  or 
railroad  car — Punishment ; 

Whoever,  without  breaking,  commits  larceny  in  the  night- 
time, in  a  dwelling  house,  or  building  adjoining  and  occupied 
therewith,  or  breaks  and  enters  any  office,  bank,  shop,  store, 
warehouse,  barn,  stable,  vessel,  railroad  car  of  any  kind,  court- 
house, jail,  meetinghouse,  college,  academy,  or  other  building 
for  public  use  or  in  which  valuable  things  are  kept,  and  commits 
larceny  therein,  shall  be  punished  by  imprisonment  for  not  less 
than  one  nor  more  than  fifteen  years;  and  when  the  offense  is 
committed  in  the  day-time,  by  imprisonment  for  not  more  than 


312  MAINE    LAWS. 

six  years,  or  by  a  fine  not  exceeding  one  thousand  dollars. 
Rev.  Stat.  Me.,  1883  ch.  120,  sec.  2. 

Business,  travelling  and  recreation  prohibited  on  the 
Lord's  day: 

Whoever,  on  the  Lord's  day,  keeps  open  his  shop,  workhouse, 
warehouse,  or  place  of  business,  travels,  or  does  any  work,  labor, 
or  business  on  that  day,  except  work  of  necessity  or  charity; 
uses  any  sport,  game  or  recreation ;  or  is  present  at  any  dancing, 
public  diversion,  show,  or  entertainment,  encouraging  the  same, 
shall  be  punished  by  fine  not  exceeding  ten  dollars.  Id.  ch.  124, 
sec.  20. 

Penalty  for  uttering  forged  receipts  of  delivery  or  deposit 
of  goods,  bonds,  or  securities  : 

Whoever  fraudulently  makes  or  utters  a  receipt  or  other  writ- 
ten evidence  of  the  delivery  or  deposit  or  any  grain,  flour,  pork, 
wood,  or  other  goods,  wares,  or  merchandise  in  any  warehouse, 
mill,  store,  or  other  building,  when  the  quantity  specified  therein 
had  not,  in  fact,  been  delivered  or  deposited  in  such  building; 
or  so  makes  or  utters  any  receipt  or  other  written  evidence  of 
the  delivery  or  deposit  with  him  of  any  bonds  or  other  securities 
or  evidences  of  debt,  when  the  same  have  not,  in  fact,  been  so 
delivered  and  dei)osited,  shall  be  punished  by  imj^risonment 
for  not  less  than  one  year  nor  more  than  ten.     Id.  ch.  126,  sec.  2, 


MAINE.  31:3 


DECISIONS  AFFECTING  WAREHOUSEMEN. 

A. 

Bailment — Bailee  may  sue  in  his  own  name. 

A  bailee  of  personal  property,  which  is  injured  while  in  his 
possession,  may  sue  in  his  own  name  and  recover  the  amount  of 
the  injury  in  an  action  against  the  wrongdoer.  Little  v.  Fossett, 
34  Me.  545. 

Sa7ne — Replevin . 

The  general  owner  of  property  in  the  hands  of  a  bailee  may 
maintain  replevin  against  an  officer,  who,  having  attached  the 
same  as  the  property  of  the  bailee,  puts  it  in  the  hands  of  a 
receipter,  by  whom  it  is  suffered  to  go  back  into  the  hands  of 
the  bailee— the  attachment  being  not  thereby  dissolved.  Small 
V.  Hutchins,  Jr.,  19  Me.  255. 

Same — Bailee  can  give  no  lien. 

A  bailee  can  give  no  lien  upon  the  property  bailed,  as  against 
the  owner.     Small  v.  Robinson,  69  Me.  425. 

Same— Stipulation  against  loss  by  fire— Posted  notices. 

A  bailee  may  properly  stipulate  that  he  will  not  be  responsi- 
ble for  goods  lost  by  fire  and  this  stipulation  may  be  shown  by 
proving  a  notice  to  this  effect  brought  to  the  attention  of  the 
bailor.     Reinstein  v.  Watts,  84  Me.  139. 

Same — Assignment  by  bailor — Notice. 

It  is  not  a  contradiction  of  the  rule  that  a  bailee  shall  not  dis- 
pute his  bailor's  title  to  allow  him  to  show  that  since  the  bail- 
ment the  title  has  been  assigned  to  another.  Roberts  v.  Noyes, 
76  Me.  590. 

R. 

Bill  of  lading — Definition. 

A  bill  of  lading  in  the  usual  form  is  a  receipt  for  the  quantity 
of  the  goods  shipped,  and  also  a  promise  to  transport  and  de- 
liver tiie  same.     O'Brien  v.  Gilchrist,  34  Me  554. 


314  MAINE    DECISIONS. 

Same — Parol  proof. 

In  so  far  as  a  bill  of  lading  is  a  receipt,  it  may  in  a  suit  be- 
tween the  parties  to  it  be  controlled  by  parol  evidence.     Id. 

Same — Stipulations  against  negligence. 

Common  carriers  cannot  stipulate  for  exemption  from  re- 
sponsibility for  losses  occasioned  by  the  negligence  of  them- 
selves or  their  servants.  Sanger  v.  Portsmouth,  S.  P.  &  E. 
R.  R.  Co.,  31  Me.  228;  Willis  et  al.  v.  Grand  Trunk  R.  R.  Co., 
62  Me.  488;  Railroad  Co.  v.  Lockwood,  17  Wallace,  357. 

Same — "Good  order ^'  construed — Burden  of  proof. 

The  signing  of  a  bill  of  lading,  acknowledging  to  have  re- 
ceived the  goods  in  question  in  good  order  and  well  conditioned, 
is  prima  facie  evidence  that,  as  to  all  circumstances  which  were 
open  to  inspection  and  visible,  the  goods  were  in  good  order, 
but  it  does  not  preclude  the  carrier  from  showing,  in  case  of  loss 
or  damage,  that  the  loss  was  produced  from  some  cause,  which 
existed,  but  was  not  apparent,  when  the  goods  were  received, 
and  which,  if  shown  satisfactorily,  will  discharge  the  carrier 
from  liability.  But  in  case  of  such  loss  or  damage,  the  pre- 
sumption of  law  is  that  it  was  occasioned  by  the  act  or  default  of 
the  carrier,  and  the  burden  of  proof  is  upon  the  carrier  to  show 
that  it  arose  from  a  cause  existing  before  receipt  of  the  goods 
for  carriage.     Tarhox  et  al.  v.  Eastern  Steamboat  Co.,  50  Me.  339. 

Same— Sale  before  arrival  of  goods— Stoppage  in  transitu. 

If  a  consignee  assigned  a  bill  of  lading  to  third  person  for  a 
valuable  consideration,  the  right  of  the  consignor  to  stop  the 
goods  in  transitu  as  against  such  assignee  is  divested.  This  held 
to  be  the  established  rule  of  commercial  law  in  England  and  in 
this  country.  The  above  is  true  when  the  assignment  is  made 
for  a  pre-existing  debt.     Lee  v.  Kimball,  45  Me.  172. 

Bills  of  lading — Negotiability. 

Bills  of  lading  are  transferable  by  indorsement,  and  when 
thus  transferred  by  the  consignee,  to  a  bona  fide  purchaser, 
without  notice  of  adverse  claims,  they  pass  the  legal  title,  and 
operate  as  a  sale  and  transfer  of  the  property  to  the  indorsee. 
Winslow  V.  Norton,  29  Me.  419;  Lee  v.  Kimball,  45  Me.  172. 


MAKVLAND.  31i 


CHAPTER  XX. 
MARYLAND. 

LAWS   PERTAININ(i   'J  (J    WAREHOUSEMEN. 

Bills  of  lading  to  be  iiei^otijible  instniiiients : 

All  bills  of  latliiig  and  all  receipts,  vouchers  or  acknowledg- 
ments whatsoever  in  writing,  in  the  nature  or  stead  of  bills  of 
lading  for  goods,  chattels  or  commodities  of  any  kind,  to  be 
transported  on  land  or  water,  or  on  both,  which  shall  l)e  ex- 
ecuted in  this  state,  or  being  executed  elsewhere,  shall  provide 
for  the  delivery  of  goods,  chattels  or  commodities  of  any  kind 
within  this  state,  and  all  warehouse,  elevator  or  storage  receipts 
whatsoever  for  goods,  chattels  or  commodities  of  any  kind 
stored  or  deposited,  or  in  said  receipts  stated  or  acknowledged 
to  be  stored  or  deposited  for  any  loin-jiose  in  any  warehouse, 
elevator  or  other  place  of  storage  or  deposit  in  this  state,  shall 
be  and  they  are  hereby  constituted  and  declared  to  be  negotiable 
instruments  and  securities,  unless  it  be  provided  in  express 
terms  to  the  contrary  on  the  face  thereof,  in  the  same  sense  as 
bills  of  exchange  and  promissory  notes,  and  full  and  complete 
title  to  the  property  in  said  instruments  mentioned  or  de- 
scribed, and  all  rights  and  remedies  incident  to  such  title,  or 
arising  under  or  derivable  from  the  said  instrument,  shall  enure 
to  and  be  vested  in  each  and  every  bona  fide  holder  thereof  for 
value,  altogether  unaffected  by  any  rights  or  equities  whatso- 
ever, of  or  between  the  original  or  any  other  prior  holders  of  or 
parties  to  the  same,  of  which  such  bona  fide  holder  for  value 
shall  not  have  had  actual  notice  at  the  time  he  became  such. 
Public  General  Laws,  Md.  art.  14,  sec.  1. 

Conclusive  evidence  of  their  contents  : 

Every  instrument  of  those  mentioned  and  described  in  sec- 
tion 1,  which  shall  be  issued  by  any  person  or  corporation,  or 
by  any  agent  or  officer  of  any  person  or  corporation  authorized 


316  MAilYLAND    LAWS. 

to  issue  the  same  on  liis  or  its  behalf,  or  authorized  or  permitted 
by  such  person  or  corporation  to  issue  hke  instruments  on  his 
or  its  behalf  for  goods,  chattels  or  commodities,  actually  re- 
ceived for  transportation  or  held  on  storage,  as  the  case  may  be, 
shall  be  conclusive  evidence  in  the  hands  of  any  bona  fide  holder 
for  value  of  such  instrument,  who  shall  have  become  such  without 
actual  notice  to  the  contrary,  that  all  of  the  goods,  chattels  ;ind 
connnodities  in  said  instrument  mentioned  or  described,  had 
been  actually  received  b}'  and  weiv  actuall}'  in  the  possession 
and  custody  of  such  person  or  corporation  at  the  time  of  issuing 
the  said  instrument  according  to  the  tenor  thereof,  and  for  the 
purpose  and  to  the  effects  therein  stipulated  or  provided,  not- 
withstanding that  the  fact  may  be  otherwise,  and  that  such 
agent  or  officer  may  have  had  no  authority  to  issue  any  such 
instrument  on  behalf  of  his  said  principal,  except  for  goods, 
chattels  or  commodities  actually  received  and  in  possession  at 
the  time  of  such  issue.     Id.  sec.  2. 

Storage  receipts  also  to  be  negotiable  : 

Every  acceptance  of  an  order  and  every  other  voucher  what- 
soever, for  any  goods,  chattels  or  commodities  as  on  storage  or 
deposit,  whereby  the  custody  or  possession  of  such  goods,  chat- 
tels or  commodities  shall  be  acknowledged  or  certified  by  any 
warehouseman,  wharfinger  or  other  person  or  corporation  within 
this  state,  and  which  acceptance  or  voucher  shall  not  on  its  face 
provide  or  stipulate  in  terms  that  it  shall  not  be  negotiable, 
shall  be  held  and  taken  when  issued  to  be  a  negotiable  receipt 
and  instrument  to  all  intents  and  effects  within  the  meaning 
and  operation  of  this  article.     Id.  sec.  3. 

When  held  to  be  completely  issued  : 

Any  instrument  declared  negotiable  by  this  article  shall  be 
held  and  taken  to  have  been  issued  within  the  meaning  of  this 
article  when  it  shall  have  been  signed  and  shall  have  been  de- 
livered out  of  the  custody  of  the  person  or  corporation  to  ])e 
charged  or  bound  by  the  same,  or  of  his  or  its  agent  or  officer 
aforesaid.     Id.  sec.  4. 

Not  to  be  issued  until  goods  are  actually  delivered  : 

No  person  or  corporation,  or  agent  or  officer  of  any  person 


MARYLAND.  317 

or  corporation  in  this  state,  sluill  issue  any  bills  of  lading,  re- 
ceipt, acknowledgment  or  voucher  whatsoever,  for  goods,  chat- 
tels or  commodities  of  any  kind  to  be  transported  on  land  or 
water,  or  on  both,  or  any  receipt,  acceptance  of  an  order  or  other 
voucher  for  goods,  chattels  or  comnKxHties,  as  on  storage  or 
deposit  in  this  state,  until  and  unless  the  whole  of  the  said  goods, 
chattels  and  commodities  shall  have  been  actually  received  to 
be  transported  by  such  person  or  corporation  in  the  one  case, 
or  shall  be  actually  in  the  j^ossession  or  custody,  or  uj)on  the 
premises,  or  under  the  absolute  and  exclusive  control  of  such 
person  or  cor[)oration  in  the  other  case  at  the  time  when  such 
instrument  shall  be  issued;  and  any  principal  person  or  corpo- 
ration, or  any  agent  or  officer  whatsoever,  of  any  person  or 
corporation,  willfully  violnting  this  section,  or  any  of  the  pro- 
visions thereof,  shall  l^e  guilty  of  a  misdemeanor,  and  on  con- 
viction thereof  shall  be  subject  to  a  fine  of  not  less  than  one 
thousand  nor  more  than  five  thousand  dollars,  in  the  discretion 
of  the  court.     Id.  sec.  5. 

Above  section  construed— What  is  a  warehouse  receipt 
within  its  lueanin;^  : 

The  following  held  not  to  be  a  storage  or  warehouse  receipt 
within  the  meaning  of  Act  of  1876,  ch.  262  (above) :  "Received 
on  storage  in  my  canning  house,  from  E.  B.  M.  &  Co.,  seventeen 
hundred  and  twenty  cases,  3x  tomatoes,  my  own  packing. 
Deliverable  to  the  order  of  E.  B.  M.  &  Co.,  only  on  production 
of  this  receipt,  properly  indorsed."  State  of  Maryland  v. 
Bryant,  63  Md.  66. 

Duplicates — Delivery  of  goods — Penalties  : 

No  warehouseman  or  corporation  or  person  whatsoever  hav- 
ing issued  or  caused  to  be  issued  or  having  outstanding,  and 
issued  by  any  agent  or  officer  of  such  person  or  corporation  as 
aforesaid,  any  receipt,  acceptance  of  order  or  other  voucher 
for  goods,  chattels  or  connnodities  as  on  deposit  or  storage 
with  or  in  the  custody  or  on  the  premises,  or  under  the  control 
of  such  person  or  corporation,  shall  issue  any  other  receipt, 
acceptance  of  order  or  other  voucher  whatsoever  for  the  same, 
or  an}   part  thereof  until  the  said  first  issued  instrument  shall 


318  MARYLAND    LAWS. 

have  been  returned  and  cancelled  or  destroyed;  and  no  person 
or  corporation  whatsoever  having  issued  or  hu\'ing  outstanding 
as  aforesaid,  any  such  receipt,  acceptance  of  order  or  other 
voucher  aforesaid,  and  no  agent  or  officer  of  any  such  person 
or  corporation  shall  part  with,  deliver  or  remove  or  permit  to 
be  delivered  or  removed,  the  goods,  chattels  or  commodities 
in  such  instrument  named  or  described,  or  any  part  thereof, 
except  only  to  or  by  the  holder  of  said  instrument,  or  upon  his 
order,  and  upon  the  presentation  of  said  instrument  with  his 
indorsement  in  every  case,  or  without  cancelling  or  destroying 
said  instrument  in  case  of  complete  delivery  or  removal  or 
indorsing  thereon  the  quantity  and  description  of  the  goods, 
chattels  or  commodities  delivered  or  removed,  and  the  names 
of  the  persons  to  whom  delivered,  or  by  whom  removed  in  case 
such  delivery  or  removal  shall  be  partial  onl)^;  and  any  princi- 
pal, person  or  cor{)()ration  or  agent  or  officer  of  any  person  or 
corporation  willfully  violating  this  section  or  any  of  the  pro- 
visions thereof,  shall  be  guilty  of  a  misdemeanor,  punishable 
by  a  fine  of  not  less  than  one  thousand,  nor  more  than  five 
thousand  dollars  in  the  case  of  a  corporation,  and  in  the  case 
of  an  individual  by  a  fine  of  not  less  than  one  hundred,  nor 
more  than  five  thousand  dollars,  and  imprisoned  in  the  peni- 
tentiary for  a  period  of  not  less  than  one  year,  nor  more  than 
three  years,  in  the  discretion  of  the  court;  provided,  however, 
that  nothing  herein  contained  shall  be  construed  to  prohibit 
the  bona  fide  issuing  of  duplicate  receipts,  acceptances  or  other 
vouchers  aforesaid,  with  the  word  '' duplicate "  conspicuously 
written  or  printed  upon  the  face  thereof,  in  the  stead  of  any 
original  outstanding  receipts,  acceptances  or  other  vouchers 
aforesaid,  which  may  have  been  lost,  destroyed  or  mislaid. 
Id.  sec.  6. 

Civil  remedies  upon : 

No  person  having  any  claim,  right  or  action  whatever  under 
this  article  or  otherwise  upon  or  under  any  instrument  declared 
negotiable  thereby,  or  by  reason  of  the  issuing,  negotiation 
or  holding  of  said  instrument,  or  the  doing  of  any  matter 
or  thing  by  this  article  forbidden  or  made  punishable,  shall  be 
in  any  way  hindered  or  precluded  from  asserting  or  maintain- 


MARYLAND.  319 

ing  the  same  by  or  because  of  any  prohibitory  or  punitive  pro- 
vision in  this  article  contained.     Id.  sec.  7. 

Fraud— Breach  of  trust— Bills  of  lading— Elevator  of 
warehouse  receipts  : 

If  any  person  or  persons,  shall  on  his  or  their  own  behalf,  or 
shall  for  or  on  behalf  of  any  other  person  or  persons,  or  shall 
for  [or]  on  behalf  of  any  firm,  co-partnershijj  or  corporation, 
receive,  accept  or  take  in  trust,  from  any  person,  persons,  firm, 
co-partnership  or  corporation,  any  warehouse  receipt  or  ele- 
vator receipt,  or  bill  of  lading  or  any  document  giving  or  pur- 
porting to  give  title  to  or  the  right  to  possession  of  any  goods, 
wares,  merchandise  or  other  personal  property  of  any  kind, 
under  or  subject  to  any  written  contract  or  agreement  express- 
ing the  terms  and  conditions  of  such  trust;  and  if  such  person 
or  persons  so  receiving  any  warehouse  receipt  or  elevator  re- 
ceipt, bill  of  lading  or  any  document  giving  or  purporting  to 
give  title  to  or  the  right  to  possession  of  any  goods,  wares  or 
merchandise  or  other  personal  property  of  any  kind  shall,  in 
violation  of  good  faith,  fail,  neglect,  or  refuse  to  perform  or 
fulfill  the  terms  and  conditions  of  such  trust  as  expressed  in 
such  written  contract  or  agreement,  then  and  in  every  such  case 
such  person  or  persons  so  failing,  neglecting  or  refusing  to  per- 
form or  fulfill  the  terms  and  conditions  of  such  trust  shall,  on 
being  convicted  thereof,  be  imprisoned  in  the  penitentiary  for 
a  term  not  more  than  ten  years  or  less  than  one  year,  or  be 
fined  not  more  than  five  thousand  dollars  or  less  than  five  hun- 
dred dollars,  or  both  in  the  discretion  of  the  court.  Supp.  to 
Public  General  Laws  of  Md.  1890-1898,  sec.  87a. 

Fraud — Warehouse — Storage  and  elevator  receipts : 

If  any  person  intrusted  with  any  money,  drafts  or  checks, 
as  advances  against  any  grain  or  other  merchandise  purchased 
and  stored  in  any  elevator  in  the  city  of  Baltimore  or  elsewhere, 
and  for  which  certificates  or  receipts  have  been  turned  into 
such  elevator,  or  delivered  to  the  parties  with  whom  the  same 
is  stored,  to  be  shipped  or  transported  from  the  city  of  Balti- 
more to  the  purchaser  of  said  grain  or  other  merchandise^,  sliall 
for  his  own  benefit  and  in  violation  of  good  faith  neglect  or 


320  MARYLAND    LAWS. 

refuse  to  deliver  to  the  party  so  intrusting  him  witli  said  money, 
draft  or  checlcs,  the  draft  or  bills  of  exchange,  with  the  docu- 
ments for  the  shipment  of  the  said  cargo  of  grain  or  other  mer- 
chandise, and  the  policies  of  insurance  upon  said  grain  or  other 
merchandise,  as  soon  as  the  shipment  is  completed  and  the  bills 
of  lading  delivered  therefor,  every  such  offender  shall  he  guilt}' 
of  a  misdemeanor,  and  being  convicted  thereof  shall  be  im- 
prisoned in  the  penitentiary  not  more  than  ten  years  nor  less 
than  one  year,  or  be  fined  not  more  than  five  thousand  dollars 
or  less  than  five  hundred,  or  shall  be  both  fined  and  imprisoned 
as  aforesaid,  in  the  discretion  of  the  court.     Id.  sec.  119a. 

Appointment — Tenure  of  oflfiee  and  salaries  of  chief  in- 
spector and  deputy  inspectors  of  tobacco  : 

The  governor  shall  nominate  and  by  and  with  the  advice  and 
consent  of  the  senate,  biennially  appoint  one  chief  inspector 
of  tobacco,  at  a  salary  of  two  thousand  dollars  per  annum,  who 
shall  have  charge  of  all  the  state  tobacco  warehouses  now  used 
in  the  city  of  Baltimoi'e,  whose  term  of  office  shall  begin  on  the 
first  day  of  March  following  ;  the  governor  shall  also  biennially 
appoint  three  deputy  inspectors,  whose  term  shall  begin  and 
end  at  the  same  time  as  the  chief  inspector,  and  who  shall  re- 
ceive a  salary  of  eighteen  hundred  dollars  per  annum.  Public 
General  Laws,  Md.,  art.  48,  sec.  9. 

Bond  and  duties  of  cliief  inspector : 

The  chief  inspector  so  appointed  shall,  before  entering  upon 
the  discharge  of  the  duties  of  his  office,  give  bond  to  the  state 
of  Maryland  in  the  sum  of  fifty  thousand  dollars,  with  a  surety 
or  sureties  to  be  approved  by  the  treasurer  of  the  state,  con- 
ditioned for  the  faithful  performance  of  the  duties  inposed  on 
him  by  law  and  for  the  full  and  punctual  report  at  the  end  of 
each  quarter  of  the  receipts  and  disbursements  of  the  state 
tobacco  warehouses  in  the  city  of  Baltimore  under  his  charge, 
which  bond  shall  be  recorded  in  the  office  of  the  clerk  of  the 
superior  court  of  Baltimore  city,  and  the  said  chief  inspector 
shall,  so  soon  as  he  shall  have  bonded  and  qualified  as  required 
by  law,  take  charge  of  all  the  tobacco  warehouses  in  Baltimore 
city,  except  No.  2  warehouse,  and  all  the  tobacco,  books,  furni- 


MARYLAND.  321 

ture,  appurtenances  and  effects  belonging  to  the  same,  and  shall 
receipt  to  his  predecessors  in  office  for  the  same,  and  upon  the 
appointment  and  iiualification  of  his  successor,  shall  deliver  the 
same  to  said  successor  and  take  a  similar  receipt;  he  shall  per- 
sonally or  by  deputy  inspectors  or  their  assistant  deputies,  in 
this  subtitle  provided  for,  inspect  all  tobacco  in  said  ware- 
houses; but  said  chief  inspector,  the  deputies,  assistant  deputies 
or  other  persons  appointed  to  or  employed  in  said  tobacco 
warehouses  shall  not  be  engaged  in  the  purchase  or  sale  of 
tobacco  (except  that  they  may  sell  tobacco  of  their  own  raising), 
nor  shall  it  be  lawful  for  any  person  thus  appointed  or  employed 
in  the  warehouses  to  receive  any  gift  or  emolument  whatever, 
either  directly  or  indirectly,  for  any  favor  rendered  in  the  line 
of  his  duty,  other  than  his  regular  salary  or  wages,  and  any 
person  violating  the  provisions  of  this  section  shall  be;  innnedi- 
ately  dismissed  from  office  or  service.  Each  of  the  deputy  in- 
spectors before  entering  on  the  duties  of  his  office  shall  give 
bond  to  the  chief  inspector  with  a  surety  or  sureties  to  be  ap- 
proved by  said  chief  inspector  in  the  sum  of  ten  thousand  dol- 
lars, conditioned  for  the  faithful  discharge  of  his  duties ;  and  the 
said  chief  inspector  in  his  discretion  may  exact  a  bond  from 
the  persons  who  directly  receive  and  handle  the  moneys  col- 
lected on  account  of  the  business  of  said  warehouses.  The 
deputy  inspectors  shall  be  subject  to  removal  for  cause  by  the 
chief  inspector,  with  the  approval  of  the  governor,  and  the  said 
deputy  inspector  shall  have  authority  to  dismiss  any  assistant 
or  employees  in  said  warehouses  whenever  in  his  judgment 
shall  seem  for  the  good  of  the  service  for  which  they  are  re- 
spectively employed;  and  every  deputy  inspector  shall  be  re- 
sponsible to  the  chief  inspector  for  the  faithful  performance  of 
the  duties  of  all  employees  under  them,  respectively,  and  any 
neglect  of  duty  on  the  part  of  any  employee  shall  be  cause  for 
his  immediate  removal  by  the  deputy  inspectors  in  their  re- 
spective warehouses.     Id.  sec.  10. 

Appointment — Duties  and  salary  of  chief  clerk  of  chief 
inspector — Appointment  and  salaries  of  clerks  to  deputy  in- 
spectors— Employment  of  laborers — Their  wages  : 

The  chief  inspector  of  tobacco  shall  be  entitled  to  appoint 
21 


322  MARYLAND    LAWS. 

one  chief  clerk  at  a  salary  of  twelve  hundred  dollars  per  annum, 
which  chief  clerk  shall  have  his  office  at  such  one  of  the  ware- 
houses as  shall  be  designated  and  occupied  by  the  chief  in- 
spector, and  shall  perform  all  the  duties  of  chief  clerk  to  said 
chief  inspector  for  all  the  business  done  at  all  of  said  warehouses. 
The  said  deputy  inspectors  provided  for  in  this  article  shall  re- 
spectively be  in  charge  of  such  warehouse  to  which  he  is  as- 
signed by  the  governor,  antl  shall  each  be  authorized  to  appoint 
one  tobacco  note  clerk,  one  receiving  clerk,  one  shipping  clerk, 
one  weighing  clerk,  one  assistant  clerk,  one  sample  tier,  one 
janitor,  one  finder,  one  elevator  and  stay-floor  man  and  not 
more  than  ten  screwmen  nor  more  than  four  laborers.  The 
salaries  of  the  tobacco  note  clerks  shall  be  one  thousand  dollars 
per  annum  each,  receiving  clerks,  shipping  clerks  and  weighing 
clerks  shall  be  eight  hundred  dollars  per  annum,  each,  that  of 
the  sample  tiers  shall  be  seven  hundred  dollars  per  annum 
each.  The  wages  of  the  assistant  clerks,  janitors,  finders,  ele- 
vator or  stay-floor  men  and  screwmen  shall  be  two  dollars  per 
day  each,  the  wages  of  the  laborers  shall  he  one  dollar  and  fifty 
cents  per  day  each.  No  deputy  inspector  shall  employ  any 
additional  force  or  labor  than  that  hereinl^efore  specified,  with- 
out the  approval  of  the  chief  inspector,  but  with  such  approval 
the  deputy  inspectors  are  authorized  to  employ  as  many  la- 
borers at  one  dollar  and  fifty  cents  per  day  as  may  be  necessary 
for  the  proper  and  economical  management  of  the  respective 
warehouses,  and  it  shall  be  the  duty  of  the  chief  inspector  to 
order  the  discharge  of  any  or  all  of  said  additional  laborers  in 
part  or  whole,  whenever  the  regular  force  can  do  the  work. 
Id.  sec.  11. 

Daily  reports  to  be  made  by  clerks — Office  of  chief  inspec- 
tor : 

At  the  end  of  each  day  the  tobacco  note  clerk  in  each  of  said 
warehouses  shall  make  a  detailed  report  of  the  operation  of 
such  respective  warehouses  to  the  chief  clerk,  who  shall  enter 
a  full  record  thereof  in  a  book  kept  by  him  for  that  purpose; 
the  chief  clerk  shall  collect  all  moneys  due  said  warehouses,  and 
in  a  set  of  books  to  be  provided  for  that  purpose,  keep  the  ac- 
counts of  each  warehouse  separately,  and  consolidate  the  opera- 


MARYLAND.  328 

tions  of  all  of  said  warehouses  in  one  general  ledger,  so  as  to 
show  the  operations  thereof  individually  and  collectively.  The 
chief  inspector  shall  select  an  office  in  one  of  the  warehouses 
now  used  by  the  state,  to  be  most  agreeable  to  him,  with  due 
regard  to  the  most  central  location  for  the  purpose  of  business. 
Id.  sec.  12. 

How  the  salaries  of  chief  inspector  and  other  officers  and 
employees  shall  be  paid  : 

The  salaries  and  wages  of  the  chief  inspector,  deputies,  as- 
sistant clerks  and  all  employees  and  appointees  of  said  ware- 
houses shall  be  paid  from  the  receipts  thereof  and  from  no  other 
source.     Id.  sec.  13. 

Chief  inspector  to  have  charge  of  receipts  and  expenditures, 
to  make  quarterly  reports  : 

The  chief  inspector  shall  have  full  charge  of  all  the  receipts 
and  disbursements  of  the  said  warehouses,  shall  make  all  con- 
tracts for  nails  or  other  articles  required  for  the  use  of  said 
warehouses  except  for  repairs,  and  shall  make  a  report  quar- 
terly, viz:  On  the  first  of  January,  April,  July  and  October  in 
each  year,  showing  the  receipts  and  disbursements  of  each  of 
said  warehouses  with  the  vouchers  therefor,  giving  in  detail  the 
respective  amounts  received  from  outage,  storage,  cooperage, 
reconditioning,  stays  and  sale  of  scraps,  and  also  showing  the 
respective  amounts  paid  for  labor,  nails,  lumber,  hoops,  inci- 
dentals, wages  and  salaries,  and  showing  the  cash  balance  for 
each  quarter,  and  at  the  quarter  ending  April  first  in  each  year, 
pay  over  to  the  comptroller  to  whom  the  aforesaid  reports  are 
required  to  be  made,  all  moneys  in  hand  after  paying  all  ex- 
penses and  salaries  of  said  warehouses,  and  said  chief  inspector 
shall  have  power  to  have  tobacco  delivered  at  such  warehouses, 
as  in  his  judgment  may  seeni  best  for  the  public  interest.  Id. 
sec.  14. 

In  case  of  absence  from  sickness — Inspector  to  appoint 
his  substitute  from  among  his  clerks  or  employees — Oath  of 
such  substitute : 

In  case  of  absence  of  the  inspector  by  reason  of  sickness  or 
any  unavoidable  cause,  then  'during  his  absence  his  duties  shall 


32-4  :maryi.anl)  laws. 

devolve  upon  the  chief  clerk  or  other  such  clerk  or  employee  as 
the  inspector  may  select  or  designate,  who  shall  qualify  under 
oath  for  the  faithful  discharge  of  the  same.     Id.  sec.  15. 

Duty  of  inspector  in  regard  to  numbering,  etc.,  of  hogs- 
heads of  tobacco : 

It  shall  be  the  duty  of  the  inspector  to  cause  each  hogshead 
of  tobacco  landed  or  delivered  at  the  warehouses  to  be  num- 
bered in  succession,  as  received,  and  cause  said  number  to  be 
enteretl  in  a  book  kejjt  for  that  purpose,  together  with  the  time 
said  hogshead  was  received,  the  name  of  the  vessel  or  other 
conveyance,  if  known  to  him,  by  which  said  hogshead  was 
brought  to  the  city  of  Baltimore  and  of  the  owner  or  consignee 
of  said  tobacco,  and  the  initials  or  other  trade-marks  on  said 
hogshead  identifying  the  same,  and  when'  said  hogshead  shall 
be  removed  from  said  warehouses  he  shall  cause  an  entry  to 
be  made  in  some  book,  kept  for  that  purpose,  of  the  time  when 
the  same  was  removed,  the  name  of  the  person  to  whom  the 
same  was  delivered  and  of  the  vessel  or  other  conveyance  by 
wliich  the  same  was  taken  away.     Id.  sec.  18. 

Dispute  concerning  tobacco  to  be  referred  to  arbitration 
committee — Proviso : 

Whenever  any  dispute  shall  arise  concerning  the  correctness 
of  any  sample  furnished  by  the  inspector  of  tobacco  under  the 
seal  of  the  state,  said  controversy  shall  be  referred  to  a  com- 
mittee of  arbitration,  consisting  of  three  persons,  to  be  selected 
as  follows:  one  thereof  shall  be  selected  by  the  inspector,  one 
thereof  shall  be  selected  by  the  claimant  or  claimants,  or  his  or 
their  agents,  and  the  two  thus  selected  shall  select  the  remain- 
ing member  of  said  committee;  provided,  however,  that  no 
person  shall  be  so  selectetl,  or  if  selected,  shall  be  competent  to 
serve  as  a  member  of  any  committee  of  arbitration,  who  shall 
have  a  direct  or  indirect  interest  in  the  tobacco  in  controversy. 
Id.  sec.  23. 

Payment  of  the  award  : 

The  inspector  shall  pay  the  amount  of  any  award  made  in 
writing  and  under  seal  by  any  committee  of  arbitration  duly 


MAHVLAND.  325 

constituted  as  heretofore  provided,  to  the  party  or  parties 
thereto  entitled,  within  thirty  days  after  the  date  thereof,  and 
shall  take  the  receipt  of  the  claimant  or  his  agent  for  the  same, 
which  said  receipt  together  with  said  award  signed  and  sealed 
b)'^  said  committee  of  arbitration  or  a  majority  of  them,  shall 
be  returned  by  the  inspector  to  the  comptroller  of  the  treasury 
in  the  inspector's  next  ensuing  report  thereafter  and  shall  be 
a  voucher  for  money  expended.     Id.  sec.  25. 

Storage  shall  be  rented  when  necessary  : 

Whenever  so  large  an  amount  of  inspected  tobacco  shall  have 
accumulated  in  the  warehouses  as  to  delay  inspections,  the  in- 
spector shall  have  the  right  to  rent  storage  for  as  much  as  may 
be  necessary  to  remove.     Id.  sec.  41. 

Inspector  to  have  control  of  the  wharves  in  absence  of  state 
wharfinger : 

In  the  absence  of  the  state  wharfinger,  the  inspector  of  to- 
bacco shall  have  control  of  the  wharves  in  front  of  the  ware- 
houses, so  far  as  relates  to  the  landing  or  corcUng  of  wood  or 
other  materials  to  the  exclusion  of  tobacco,  and  vessels  having 
tobacco  or  other  conveyances  having  tobacco  to  deliver  to  such 
warehouses  shall  have  preference  over  all  others  in  the  use  of 
such  wharves ;  no  charge  for  wharfage  shall  be  laid  or  any  tobacco 
received  at  or  delivered  from  any  of  the  state  warehouse  wharves. 
Id.  sec.  44. 

Duty  of  arbitration  committee : 

If  any  owner  or  owners  of  tobacco,  or  his  or  their  agent  or 
agents  shall  believe  that  any  of  their  tobacco  has  been  incor- 
rectly sampled,  and  shall  so  notify  the  inspector  before  the  sale 
thereof  witliin  ten  days  of  the  date  of  its  inspection,  the  matter 
shall  be  referred  to  a  committee  of  arbitration,  consisting  of 
three  persons  to  be  selected  as  follows:  One  thereof  shall  be 
selected  by  the  inspector,  one  thereof  shall  be  selected  by  the 
owner  or  owmers  of  the  tobacco,  or  their  agent  or  agents,  and 
the  two  thus  selected  shall  select  the  remaining  member  of  the 
committee ;  and  said  committee  shall  have  the  power  to  requii'e 
the  deputy  inspector  in  charge  of  said  hogshead  of  tobacco  to 


326  MAltYI.AXI)    LAWS. 

have  the  same  re-opened  ami  if  it  shall  ho  found  that  the  sample 
does  not  correctly  represent  said  tobacco,  the  said  committee 
or  a  majority  of  them,  shall  select  a  sample  which  shall  cor- 
rectly represent,  and  shall  be  substituted  in  the  place  of  the 
rejected  sample  at  no  cost  of  the  owner;  provided,  hoivever,  thiit 
if  said  sample  shall  be  found  by  said  conmiittee  to  properly 
represent  said  tobacco,  then  the  cost  of  re-opening  the  said  tobacco 
shall  be  paid  by  the  owner  of  the  same,  and  said  cost  shall  be 
one  dollar  ($1.00)  per  hogshead.     Id.  sec.  50a. 

Note.  Corporations  may  be  found  for  the  purpose  of  conducting  the 
warehouse  business  under  the  provisions  of  art.  23,  sec  14  et  seq.  Maryland 
Public  General  Laws. 


MARYLAND.  327 

DECISIONS  AFFECTING  WAREHOUSEMEN. 

A. 

Bailment — When  not  countermandable. 

Where  money  or  goods  are  delivered  to  a  bailee  to  be  delivered 
to  a  third  person,  the  bailment  is  not  countermandable  after  the 
third  person  has  assented  tlioroto,  if  thei'e  is  a  valuable  con- 
sideration for  the  bailment.     Creager  v.  Link,  7  Md.  259. 

B. 

Reasonable  care — Defined. 

An  instruction  to  the  following  effect,  given  by  the  court  to 
the  jury,  defining  the  duty  of  a  warehouseman  in  the  bestowal 
of  reasonable  care,  held,  on  appeal,  to  have  been  correct:  "The 
said  defendant  was  bound  to  use  reasonable  care  in  storing  said 
goods  in  a  place  of  safety  according  to  their  kind,  and  then  by 
the  practice  of  the  same  care  keeping  them  from  injury  until 
called  for  by  the  plaintiff ;  that  reasonable  care  in  this  connection 
means  such  care  as  a  prudent  man  would  give  to  the  keeping  of 
his  own  goods  of  like  kind  and  under  like  circumstances." 
Merchants'  &  Miners'  Transportation  Co.  v.  Story,  50  Md.  4. 

Same — Deposit  of  bonds  in  a  bank. 

In  an  action  against  a  national  bank  for  the  recovery  of  the 
value  of  certain  bonds  which  were  stolen  from  its  vault,  such 
bonds  being  held  by  the  bank  as  collateral  security  for  the  i)a3'- 
ment  of  any  loans  which  it  might,  at  subsequent  times,  make 
to  the  plaintiff,  the  court  instructed  the  jury  that  the  bank 
would  be  responsible  if  the  jury  found  from  the  evidence  that 
the  bonds  had  been  stolen  in  consequence  of  failure  on  the  part 
of  the  defendant  to  exercise  such  care  and  diligence  in  the 
custody  and  keeping  of  them  as,  at  the  time,  banks  of  common 
prudence,  in  like  situation  and  business,  usually  bestowed  in 
the  custody  and  keeping  of  similar  property  belonging  to  them- 
selves. That  the  care  and  diligence  should  be  proportional  to 
the  consequences  likely  to  arise  from  any  improvidence  on  the 
part  of  the  defendant,  and  that  the  jury  might  take  into  con- 
sideration whether  it  would  have  been  a  proper  precaution  to 


328  M  AMY  LAND    DEClSlON^S. 

have  had  an  inside  watchman  in  the  bank  at  nights  and  on 
Sundays  ;  that  the  jury  should  also  consider  the  value  of  the 
bonds  and  liability  to  loss,  the  temptation  they  offered  to  theft, 
the  difficulty  of  recovering  them  if  stolen,  the  situation  of  the 
building  and  vault,  and  the  sufficiency  of  the  safe  in  which  the 
defendant  kept  them  at  the  time  they  were  stolen.  Such  in- 
struction held  correct.  Third  National  Bank  v.  Boyd,  44  Md. 
47. 

Conversion — Action  at  law. 

A  conversion  simply  creates  a  pecuniary  liability,  and  an 
action  in  ec^uity  will  be  dismissed  for  the  want  of  jurisdiction 
unless  there  is  some  particular  fund  which  the  plaintiff  seeks 
to  recover  on  other  ground  for  equitable  relief.  Even  though 
a  cause  of  action  involves  equitable  features,  if  the  legal  remedy 
be  complete,  sufficient,  and  certain,  it  must  be  resorted  to. 
Cecil  National  Bank  v.  Thurher  et  ah,  59  Fed.  Rep.  913;  Buzard 
Y.Houston,  119U.  S.  347. 

N. 

Goods  damaged  by  water — Unusual  rains — Reasonable  care. 

A  carrier,  acting  in  the  capacity  of  warehouseman,  stored 
goods  upon  its  wharf,  and,  owing  to  unusual  rains,  there  was  a 
sudden  rise  in  the  river,  the  goods  being  damaged  by  water. 
It  further  appeared  that  the  tide  had  been  steadily  rising  all  day 
and  it  was  not  until  the  water  came  with  a  rush  that  the  defendant 
attempted  to  remove  plaintiff's  goods.  It  was  held  that  the 
defendant  was  liable  in  that  it  had  not  exercised  reasonable 
care  in  its  efforts  to  preserve  the  goods.  Merchants'  &  Miners' 
Transportation  Co.  v.  Story,  50  Md.  4. 

0. 

Same — Measure  of  damages. 

In  an  action  by  the  assignee  of  a  warehouseman  against  an 
insurance  company,  on  a  policy  covering  twenty-eight  (28)  bales 
of  cotton,  where  it  appeared  that  some  of  the  cotton  stored  in 
the  warehouse  had  been  rescued,  the  following  instruction  to 
the  jury,  in  ascertaining  the  amount  of  damages,  held  to  be 
correct:  "If  the  jury  find  from  the  evidence  that  the  plaintiffs 


MARYLAND.  329 

are  entitled  to  recover,  then,  in  ascertaining  the  amount  of  loss 
or  damages  which  the  phiintiffs  are  to  recover,  the  jury  ought 
to  deduct  such  sum  as  from  the  evidence  in  the  cause  they  may 
find  is  the  proportion  due  to  twenty-eight  bales  of  cotton,  in 
the  distribution  of  the  proceeds  of  sale  of  the  rescued  antl  saved 
cotton."  Hough,  Clendening  &  Co.  v.  Pre.st.  &  Dir.  Peoples' 
Fire  Ins.  Co.,  36  Md.  398. 

Same — Bonds  stolen  from  vault. 

Where  bonds  were  stolen  from  vault  of  defendant,  a  national 
bank,  the  court  instructed  the  jury  that  the  pro]3er  measure  of 
damages  should  be  the  value  of  the  bonds  at  the  time  they  were 
stolen  and  not  the  value  at  the  time  of  demand.  This  instruc- 
tion held  correct.     Third  National  Bank  v.  Boyd,  44  Md.  47. 

P. 

Insurable  interest — Warehouseman  has. 

The  law  is  well  settled  that  a  person  having  goods  in  his 
possession  as  consignee,  or  on  commission,  may  insure  them 
in  his  own  name,  and  in  the  event  of  loss,  recover  the  full  amount 
of  the  insurance,  and,  after  satisfying  his  own  claim,  hold  the 
balance  as  trustee  for  the  owner.  Hough,  Clendening  &  Co.  v. 
Prest.  &  Dir.  Peoples'  Fire  Ins.  Co.,  36  Md.  398;  Home  Insurance 
Co.  V.  Baltimore  Warehouse  Co.,  93  U.  S.  527;  London  &  N.  W. 
Ry.  Co.  V.  Glyn,  1  Ell.  &  Ell.  Q.  B.  652. 

Same — Double  policies. 

Where  several  policies  are  in  favor  of  the  same  assured,  on  the 
same  interest,  in  the  same  subject,  and  against  the  sjune  risk 
they  are  what  is  known  as  double  poHcies,  and  the  insurance 
companies  issuing  them  are  bound  to  contribute  their  resj^ective 
proportion  of  the  loss.  Hough,  Clendening  &  Co.  v.  Prest.  & 
Dir.  Peoples'  Fire  Ins.  Co.,  36  Md.  398;  Balto.  Fire  Ins.  Co.  v. 
Loney,  20  Md.  38. 

Warehouse  receipts — Negotiability — Bona  fide  holder  protected. 

A  warehouseman  issued  receipts  for  goods  stored  with  him 
to  one  who  represented  himself  as  the  owner  of  the  goods,  it 
appearing  from  certam  tickets  in  the  nature  of  bills  of  lading 


330  MAltYLAXn   DKC'ISIONS. 

that  such  person  was  the  consignee  of  the  goods.  The  ware- 
houseman afterward  loaned  money  to  him  and  accepted  the 
w^arehouse  receipts  as  collateral  security.  It  subsequently  ap- 
peared that  the  person  who  had  deposited  the  goods  was  not 
in  fact  the  owner  thereof  but  that  they  had  been  consigned  to 
him  by  the  owner,  in  the  course  of  business  dealings.  In  an 
action  against  the  warehouseman  by  the  owner,  it  was  held 
that  the  warehouseman  was  botia  fide  holder  of  the  receipts 
and,  therefore,  judgment  was  rendered  in  his  favor.  Article  14, 
section  1  of  the  Code  construed.  Farmers'  Packing  Co.  v.  Broum 
&  Sons,  87  Md.  1;  Tildemanx.  Knox,  53  Md.  612.  (Note.  The 
case  of  B.  &  0.  R.  R.  Co.  v.  Wilkins,  etc.,  44  Md.  11,  held  that 
bills  of  lading  were  not  negotiable  in  the  sense  that  promissory 
notes  were,  but  this  case  was  decided  in  the  October  term,  1875, 
whereas  art.  14,  sec.  1  of  the  Code  was  enacted  in  1876.) 

Same — »Saw?e — ''Actual  notice,"  what  is  equivalent  to. 

Where  a  bill  of  lading  contains  statements  which  would  put 
a  reasonable  man  on  notice  that  other  persons  than  the  assignor 
had  an  interest  in  the  goods,  such  statements  held  to  be  equiva- 
lent to  actual  notice,  and  the  assignee  does  not  take  the  propertv 
clear  of  all  equities.  If,  imder  such  circumstances,  the  assignee 
failed  to  follow  up,  by  inquiry,  and  thus  learn  all  about  the 
transaction,  it  was  held  to  be  his  own  fault  and  he  had  no 
right  to  com])lain.  Jacob  Dold  Pocking  Co.  v.  Oher  &  Sons 
Co.,  71  Md.  155;  Richards,  Leftwich  &  Co.  v.  Meyer  &  Kross,  57 
Md.  10. 

Same — Must  he  issued  by  warehouseman. 

It  is  clear  from  the  language  of  the  Act  of  1876  (chapter  262), 
which  pro\ddes  that  bills  of  lading,  warehouse,  elevator,  or 
storage  receipts  shall  be  negotiable  in  the  same  sense  as  bills 
of  exchange,  that  the  legislature  never  meant  to  declare  that  a 
mere  receipt  issued  by  one  engaged  in  the  canning  business, 
for  the  goods  canned  by  him,  which  were  to  remain  in  his  pos- 
session subject  to  the  order  of  the  purchaser,  should  pass  title 
to  the  goods  as  against  all  other  persons,  and  should  also  be 
negotiable  in  the  same  sense  as  bills  of  exchange  and  prom- 
issory notes.     State  of  Maryland  v.  Bryant,  63  Md.  66. 


MARYLAND.  331 

B. 

Bills  of  lading — Exemptions  in. 

Common  carriers  may,  by  special  contract,  limit  their  liability, 
as  recognized  by  the  common  law,  where  there  seems  to  be  reason 
and  justice  to  sustain  the  limitation.  McCoy  &  Parkhurst  v. 
Erie  &  Western  Trans,  Co.,  42  Md.  498;  Banknrd  v.  B.  &  0.  R.  R., 
34  Md.  197;  Railroad  Co.  v.  Lockwood,  17  Wall.  357. 

Same— Evidence  received  to  the  effect  that  the  goods  were  never 
received. 

^  It  appeared  that  the  agent  of  the  defendant  company  had 
signed  a  bill  of  lading  in  which  it  was  stated  that  certain  goods 
had  been  received  by  the  defendant.  It  was  shown,  on  the 
trial,  that  the  agent  issued  this  bill  of  lading  upon  a  promise 
that  the  railroad  or  cotton  press  receipts  for  the  property  would 
be  subsequently  delivered  to  him.  The  court  held  that  it  was 
proper  to  allow  the  agent  to  explain  the  circumstances  under 
which  he  was  induced  to  sign  the  bill  and  also  to  testify  to  the 
fact  that  the  goods,  represented  to  have  been  received,  were  not 
in  fact  delivered  to  him.  hazard  et  al.  v.  Merchants'  &  Mines' 
Transportation  Co.,  78  Md.  1. 

Same — Parol  agreement  and  parol  proof. 

The  legal  operation  of  the  contract  contained  in  a  bill  of  lad- 
ing may  be  modified  by  adding  thereto  a  parol  supplementary 
agreement  that  the  freight  was  to  be  at  the  risk  of  the  shipper, 
and  such  special  agreement  may  be  established  by  parol  proof. 
Atwell  &  Appleton  v.  Miller,  11  Md.  348. 


332  MASSACHUSETTS    LAWS. 


CHAPTER  XXL 
MASSACHUSETTS. 

LAWS  PERTAINING  TO   WAREHOUSEMEN. 

Public  warehouseiiien  may  be  licensed  by  the  governor  : 

The  governor,  with  the  advice  and  consent  of  the  council, 
may  license  in  any  city  or  town  suitable  persons,  or  corporations 
established  under  the  laws  of  the  commonwealth  and  having 
their  places  of  business  within  the  commonwealth,  to  be  public 
warehousemen,  who  may  keep  and  maintain  public  warehouses 
for  the  storage  of  goods,  wares,  and  merchtindise.  But  no  rail- 
road corporation  which  may  be  licensed  as  a  public  warehouse- 
man shall  be  required  as  such  to  receive  any  property  except 
what  has  been  or  is  forthwith  to  be  transported  over  its  road. 
P.S.ch.72.sec.  1,1882. 

Bond  in  amount  and  with  such  sureties  as  shall  be  approved 
by  the  governor : 

Every  person  and  corporation  licensed  under  the  preceding 
section  shall  give  bond  to  the  treasurer  of  the  commonwealth 
in  such  amount  and  with  such  sureties  as  shall  be  approved  by 
the  governor,  for  the  faithful  discharge  of  the  duties  of  a  public 
warehouseman;  except  that  a  railroad  corporation  so  licensed 
shall  not  be  required  to  give  any  sureties  on  its  bond.  1885, 
ch.  167,  sec.  2. 

How  an  action  on  bond  may  be  brought : 

When  a  licensed  public  warehouseman  fails  to  perform  his 
duty  or  violates  any  of  the  provisions  of  this  chapter,  any  person 
injured  by  such  failure  or  violation  may  bring  [in  action  in  the 
name  of  the  commonwealth,  but  to  his  own  use,  in  any  court  of 
competent  jurisdiction,  on  the  bond  of  such  warehouseman. 
In  such  action  the  writ  shall  be  indorsed  by  the  person  in  whose 
behalf  the  action  is  brought,  or  by  some  other  person  satisfactory 
to  the  court;  and  the  indorser  shall  be  liable  to  the  defendant 


MASSACHUSKTTS.  383 

for  any  costs  which  the  (Ict'ciuhiiit  may  recover  in  such  action, 
and  the  commonwealth  shall  not  be  liable  for  any  costs.  P.  S. 
c.  72,  sec.  3. 

Warehouseniaii  may  be  required  to  insure  property  depos- 
ited with  him  : 

Every  such  warehouseman  sliall,  when  requested  thereto  in 
writing  by  a  party  placing  property  with  him  on  storage,  cause 
such  property  to  be  insured  for  whom  it  may  concern.  When 
such  warehouseman  is  a  railroad  corporation,  it  may  itself  in- 
sure such  property,  instead  of  causing  it  to  be  insured  by  any 
other  insurer.     Id.  sec.  4. 

Negotiable  warehouse  receipts — What  to  state — Non-nego- 
tiable receipts  given  on  request — Stamped — Assignments  of 
of  non-negotiable  receipts  not  valid  till  recorded  : 

Every  such  warehouseman  shall,  except  as  hereinafter  pro- 
vided, give  to  each  person  depositing  property  with  him  for 
storage,  a  rec(M|)t  therefor,  which  shall  be  negotiable  in  form, 
and  shall  describe  the  property,  distinctly  stating  the  brand  or 
distinguishing  marks  upon  it,  and  if  such  property  is  grain  the 
quantity  and  inspected  grade  thereof.  The  receipt  shall  also 
state  the  rate  of  charges  for  w'arehousing  the  property  and  the 
amount  and  rate  of  insurance  thereon:  Provided,  however,  that 
every  such  warehouseman  shall  upon  the  request  of  any  person 
depositing  pr()i)erty  with  him  for  storage  give  to  such  person 
his  non-negotiable  receipt  therefor,  which  receipt,  shall  have  the 
w^ords  "non-negotiable"  plainly  written,  printed  or  stamped 
upon  the  face  thereof;  and  Provided,  further,  that  assignments 
of  such  non-negotiable  receipts  shall  not  be  effectual  until  re- 
corded on  the  books  of  the  warehouseman  issuing  them.  1886, 
c.  258. 

Title  of  property  stored  to  pass  by  indorsement  and  de- 
livery of  receipt : 

The  title  to  goods  and  chattels  stored  in  a  pul)lic  warehouse 
shall  pass  to  purchaser  or  pledgee  by  the  indorsement  and  de- 
livery to  him  of  the  warehouseman's  receipt  therefor,  signed  by 
the  person  to  whom  such  receipt  was  originally  given  or  by  an 
indorsee  of  such  receipt.     P.  S.  c.  72,  sec.  6. 


334  MASSACHUSETTS    LAWS. 

Special  provision  for  grain,  etc.  : 

^^'hol■e  grain  or  other  property  is  stored  in  a  public  warehouse 
in  such  a  manner  that  different  lots  or  parcels  are  mixed  to- 
gether so  that  the  identity  thereof  cannot  be  accurately  pre- 
served, the  warehouseman's  receipt  for  any  portion  of  such 
grain  or  projjorty  shall  be  deemed  a  valid  titl(>  to  so  nuich  thereof 
as  is  designated  in  said  receipt,  without  regard  to  any  separation 
or  identification.     Id.  sec.  7. 

Warehonsenian  to  keep  lK)oks  open  to  inspection,  etc. : 

Every  such  warehouseman  shall  keep  books  in  which  shall 
be  entered  an  account  of  all  his  transactions  relating  to  the 
warehousing,  storing,  tmd  insuring  of  goods,  wares,  and  mer- 
chandise, and  to  the  issuing  of  receipts  therefor,  which  books 
shall  he  open  to  the  inspection  of  any  person  actually  interested 
in  the  property  to  which  such  entries  relate.     1895,  c.  348,  sec.  1. 

Notice  of  names  of  persons  licensed,  and  of  amount  of 
their  bonds,  to  be  published,  etc.  : 

Due  notice  of  the  license  and  qualifications  of  each  ware- 
houseman, of  the  amount  of  the  bond  given  by  him,  and  also  of 
his  discontinuance  as  a  warehouseman,  shall  be  given  at  his 
expense  by  the  secretary  of  the  commonwealth  by  publishing 
the  same  for  not  less  than  ten  days  in  one  or  more  newspapers 
published  in  the  county  or  town  in  which  the  warehouse  is 
located,  or,  if  no  newspaper  is  published  in  such  county,  then 
in  one  of  the  newspapers  published  in  the  city  of  Boston.  P.  S. 
c.  72,  sec.  9. 

Penalty  for  the  unlawful  sale  of  property  deposited  in  a 
public  warehouse : 

Whoever  unlawfully  sells,  pledges,  lends,  or  in  any  other  way 
disposes  of,  or  permits,  or  is  a  party  to  the  unlawful  selling, 
pledging,  lending,  or  other  disposition  of  any  goods,  wares, 
merchan(Hse,  article,  or  thing  deposited  in  a  public  warehouse, 
without  the  authority  of  the  party  who  deposited  the  same, 
shall  be  ]Dunished  by  a  fine  not  exceeding  five  thousand  dollars 
and  by  imprisonment  in  the  state  prison  for  not  more  than 
three  years.  Hut  no  ])ul)lic  warehouseman  shall  be  liable  to 
the  penalties  provided  in  this  section  unless  with  intent  to  injure 


MASSACHUSETTS.  335 

or  defraud  any  person  he  so  sells,  jjledges,  lends,  or  in  any  other 
way  disposes  of,  or  permits  or  is  a  party  to  the  selling,  pkulging, 
lending,  or  other  disposition  of  any  goods,  wares,  merchandise, 
article,  or  thing  so  deposited.     1895,  ch.  348,  sec.  2. 

For  forcing,  etc.,  warehouse  receipt,  etc.  : 

Whoever  falsely  makes,  utters,  forges,  or  counterfeits,  or 
permits  or  is  party  to  the  false  making,  uttering,  forging,  or 
counterfeiting,  of  a  warehouse  receipt,  certificate,  or  other  in- 
strument used  to  pass  or  to  give  title  to  property  deposited  in 
a  public  warehouse,  shall  be  jjunished  by  fine  not  exceeding  five 
thousand  dollars  and  imprisonment  in  the  state  prison  for  not 
more  than  three  years.     P.  S.  ch.  72,  sec.  11. 

For  forging,  etc.,  signature  of  warehouseman — Indorser, 
etc.,  on  receipt : 

Whoever  falsely  makes,  utters,  forges,  or  counterfeits,  or 
permits  or  is  a  party  to  the  false  making,  uttering,  forging,  or 
counterfeiting,  of  the  signature  of  a  warehouseman  or  of  an  in- 
dorser or  other  person  to  an  instrument  used  to  pass  or  to  give 
title  to  property  deposited  in  a  public  warehouse,  shall  be  pun- 
ished by  fine  not  exceeding  five  thousand  dollars  and  by  im- 
prisonment in  the  state  prison  for  not  more  than  three  years. 
Id.  sec.  12. 

Warehouseman  may  appoint  deputies  : 

A  warehouseman  appointed  under  the  provisions  of  this  chap- 
ter may  appoint  one  or  more  deputies,  for  whose  acts  he  shall 
be  responsible.     Id.  sec.  13. 

Penalty  for  disposing  of  warehouseman's  receipt  after 
property  has  been  attached  : 

Whoever,  after  his  interest  in  the  property  described  in  a 
warehouseman's  receipt  has  been  attached,  indorses,  assigns,  or 
otherwise  disposes  of  such  receipt,  without  disclosing  such  at- 
tachment to  the  person  to  whom  such  receipt  is  indorsed,  as- 
signed, or  disposed  of,  shall,  if  he  has  knowledge  of  such  attach- 
ment, be  punished  by  fine  not  exceeding  five  thousand  dollars 
and  by  imprisonment  in  the  state  prison  for  not  more  than  three 


336  MASSACHUSETTS    LAWS. 

years,  or  by  imprisonment  in  the  common  jail  for  not  more  than 
one  year.     Id.  sec.  14. 

Collection  of  charges  for  storage  by  public  warehouseman  : 

Every  pubhc  warehouseman,  who  shall  have  in  his  possession 
any  property  by  virtue  of  any  agreement  or  warehouse  receipt 
for  the  storage  of  the  same,  on  which  a  claim  for  storage  is  at 
least  one  year  overdue,  may  proceed  to  sell  the  same  at  public 
auction,  and  out  of  the  proceeds  may  retain  the  charges  for 
storage  of  said  goods,  wares  and  merchandise,  and  any  advances 
that  may  have  l^een  made  thereon  by  him  or  them,  and  the  ex- 
pense of  advertising  and  sale  thereof;  but  no  sale  shall  be  made 
until  after  the  giving  of  a  printed  or  written  notice  of  such  sale 
to  the  person  or  persons  in  wdiose  name  such  goods,  wares  and 
merchandise  were  stored,  requiring  hini,  her  or  them,  naming 
them,  to  pay  the  arrears  or  amount  due  for  such  storage,  and  in 
case  of  default  in  so  doing  that  such  goods,  wares  and  mer- 
chandise will  be  sold  to  pay  the  same,  at  a  time  and  place  to  be 
specified  in  such  notice.     1887,  ch.  277,  sec.  1. 

Notice  of  sale  of  goods  by  public  warehousemen  for  pay- 
ment of  storage  charges — How  serAcd  : 

The  notice  required  by  the  last  preceding  section  shall  be 
served  by  delivering  it  to  the  person  or  persons  in  wdiose  name 
said  goods,  wares  and  merchandise  were  stored,  or  by  leaving 
it  at  his  usual  place  of  abode,  if  within  the  conmionwealth,  at 
least  sixty  days  before  the  time  of  such  sale,  and  a  return  of  the 
service  shall  be  made  by  some  officer  authorized  to  serve  civil 
process,  or  by  some  other  person,  with  an  affidavit  of  the  truth 
of  the  return.  If  the  party  storing  such  goods  cannot  with 
reasonable  diligence  be  found  within  the  commonwealth  of 
Massachusetts,  then  such  notice  shall  be  given  by  publication 
once  in  each  week  for  three  successive  \veeks,  the  last  publica- 
tion to  be  at  least  thirty  days  before  the  time  of  such  sale,  in  a 
new^spaper  published  in  the  city  of  town  where  such  w^arehouse 
is  located,  or  if  there  is  no  such  paper,  in  one  of  the  principal 
newspapers  published  in  the  county  in  which  said  city  or  town 
is  located.  In  the  event  that  the  party  storing  such  goods  shall 
have  parted  with  the  same,  and  the  purchaser  shall  have  notified 


MASSACHUSETTS.  337 

the  warehouseman,  with  his  address,  such  notice  shall  be  given 
to  such  person  in  Heu  of  the  person  storing  the  goods.  1895, 
ch.  348,  sec.  6. 

Warehoiiseiiiaii  to  enter  in  a  book  surplus  of  proceeds  of 
sale  and  pay  the  same  into  the  treasury  of  theeoinnioiiwealth 
— Affidavit — Evidence  : 

Such  warehouseman  shall  make  an  entry,  in  a  book  kept  for 
that  purpose,  of  the  balance  or  suiplus  oi  tlu;  proceeds  of  the 
sale,  if  any,  and  such  balance  or  surjjlus  shall  be  paid  over  to 
such  person  or  persons  entitled  thereto  on  demand;  and  if  such 
balance  or  surplus  is  not  called  for  or  claimed  by  said  party  or 
owner  of  said  property  within  six  months  after  such  sale,  such 
balance  of  surplus  shall  be  paid  by  such  warehouseman  to  the 
treasurer  of  the  commonwealth,  who  shall  pay  the  same  to  the 
parties  entitled  thereto,  if  called  for  or  claimed  by  the  rightful 
owner  within  five  years  after  the  receipt  thereof;  and  such 
warehouseman  shall,  at  the  same  time,  file  with  said  treasurer 
an  affidavit,  in  which  shall  be  stated  the  name  and  place  of 
residence,  so  far  as  the  same  are  known,  of  the  person  whose 
property  has  been  sold,  the  articles  sold  and  the  prices  at  which 
they  were  sold,  the  name  and  residence  of  the  auctioneer  making 
the  sale,  together  with  a  copy  of  the  notice  served  or  published, 
and  how  served.  Such  notice  and  affidavit,  when  filed  as  above 
provided,  shall  be  admitted  as  evidence  of  the  giving  of  the 
notice.     1895,  ch.  277,  sec,  3. 

Perishable  or  dangerous  property  deposited  in  a  public 
warehouse  may  be  sold  in  certain  cases : 

Whenever  a  public  warehouseman  has  in  his  possession  any 
property  which  is  of  a  perishable  nature,  or  which  will  deterio- 
rate greatly  in  value  by  keeping,  or  upon  which  the  charges  for 
storage  will  be  likely  to  exceed  the  value  thereof,  or  which  by 
its  odor,  leakage,  inflammability,  or  explosive  nature  is  likely 
to  injure  other  goods,  such  property  having  been  stored  upon  a 
non-negotiable  receipt;  and  when  said  warehouseman  has  noti- 
fied the  person  in  whose  name  the  property  was  received  to  re- 
move said  property  and  such  person  has  refused  or  omitted  to 
receive  and  take  away  such  property  and  to  pa}'  the  storage  and 
proper  charges  thereon,  said  public  warehouseman  may,  in  the 
2% 


338  MASSACHUSETTS    LAWS. 

exercise  of  a  reasonable  discretion,  sell  the  same  at  public  or 
private  sale  without  advertizing,  and  the  proceeds,  if  there  are 
any  proceeds,  after  deducting  the  amount  of  said  storage  charges 
and  expenses  of  sale  shall  be  paid  or  credited  to  the  person  in 
whose  name  the  property  was  stored;  and  if  said  person  cannot 
be  found,  on  reasonable  incjuiry,  the  sale  may  be  made  without 
any  notice;  and  the  proceeds,  of  such  sale  after  deducting  the 
amount  of  storage,  expenses  of  sale  and  other  proper  charges, 
shall  be  paid  to  the  treasurer  of  the  commonwealth,  who  shall 
pay  the  same  to  the  person  entitled  thereto,  if  called  for  or 
claimed  by  the  rightful  owner  within  one  year  of  the  receipt 
thereof  by  said  treasurer.     1895,  ch.  348,  sec.  3. 

Disposal  of  property  which  warehoiiseinau  cannot  sell  : 

Whenever  a  public  warehouseman,  under  the  provisions  of 
the  preceding  section,  has  made  a  reasonable  effort  to  sell  per- 
ishable and  worthless  property  and  has  been  unable  to  do  so 
because  of  its  being  of  little  or  no  value,  he  may  then  proceed 
to  dispose  of  such  property  in  any  lawful  manner,  and  he  shall 
not  be  liable  in  any  way  for  property  so  disposed  of.     Id.  sec.  4. 

Liability  of  depositor  of  goods  in  public  warehouse  for 
charges  regulated  : 

Whenever  a  public  warehouseman,  under  the  provisions  of 
the  two  preceding  sections,  has  sold  or  otherwise  disposed  of 
])roperty,  and  the  proceeds  of  such  sale  or  disposition  have  not 
equaled  the  amount  necessary  to  pay  the  storage  charges,  ex- 
penses of  sale  and  other  charges  against  such  property,  then  the 
person  in  whose  name  said  property  was  stored  shall  be  liable 
to  said  public  warehouseman  for  an  amount  which,  added  to  the 
proceeds  of  such  sale,  will  be  sufficient  to  pay  all  of  the  proper 
charges  upon  such  property ;  or  in  case  such  property  was  value- 
less, and  there  were  no  proceeds  realized  from  its  disposition, 
the  person  in  whose  name  said  property  was  stored  shall  be  liable 
to  said  public  warehouseman  for  all  proper  charges  against  said 
property.     Id.  sec.  5. 

Notice  of  sale  of  goods  foi*  public  Avarehouseman  for  pay- 
ment of  storage  charges — How  served  : 

The  notice  required  by  the  last  preceding  section  shall  be 


MASSACHUSETTS.  389 

served  by  delivering  it  to  the  {)ersoii  or  persons  in  whose  nanic 
said  goods,  wares  and  nierchancUse  were  stored,  or  by  leaving  il 
at  his  usual  place  of  abode,  if  within  the  connnonwealth,  at  least 
sixty  days  before  the  time  of  such  sale,  and  a  return  of  the 
service  shall  be  made  by  some  officer  authorized  to  serve  civil 
process,  or  by  some  other  person,  with  an  affidavit  of  the  truth 
of  the  return.  If  the  party  storing  sucli  goods  cannot  witli 
reasonable  diligence  be  found  within  the  commonwealth  of 
Massachusetts,  then  such  notice  shall  be  given  by  publication 
once  in  each  week  for  three  successive  weeks  the  last  publica- 
tion to  be  at  least  thirty  days  before  the  time  of  such  sale,  in  a 
newspaper  published  in  the  city  or  town  where  such  warehouse 
is  located,  or  if  there  is  no  such  paper,  in  one  of  the  principal 
newspapers  published  in  the  county  in  w^hich  said  city  or  town 
is  located.  In  the  event  that  the  party  storing  such  goods  shall 
have  parted  with  the  same,  and  the  purchaser  shall  have  noti- 
fied the  warehouseman,  with  his  address,  such  notice  shall  be 
given  to  such  person  in  lieu  of  the  person  storing  the  goods. 
Id.  sec.  6. 

Determination  of  title,  etc.,  to  property  held  by  public 
warehousemen,  etc.  : 

Be  it  enacted,  etc.,  as  follows  :  In  any  action  in  which  recovery 
of,  or  the  determination  of  the  title  to,  property  held  by  a 
pubHc  warehouseman  or  other  depositary  is  sought,  if  it  appears 
that  such  property  is  claimed  by  another  party  than  the  i)lain- 
tiff,  whether  by  the  husband  or  wife  of  said  plaintiff  or  other- 
wise, the  court  in  which  such  action  is  })en(Hng,  on  the  petition 
of  the  defendant,  which  petition  shall  give  the  name  and  resi- 
dence of  all  known  claimants,  and  on  such  notice  as  the  court 
may  order  to  the  plaintiff  and  to  such  claimants,  may  order  the 
proceedings  to  be  amended  by  making  such  claimants  defend- 
ants therein  ;  and  thereupon  the  rights  and  interests  of  the 
several  parties  in  and  to  such  property  shall  be  heard  and  de- 
termined. Such  property  may  remain  in  the  hands  of  the 
public  warehouseman  or  other  depositary  until  final  judgment, 
and  shall  then  be  delivered  in  accordance  with  the  order  of  the 
court.    Acts  &  Resolves,  Mass.  1899,  ch.  352,  p.  310. 


340  MASSACHUSETTS   DECISIONS. 

DECISIONS  AFFECTING  WAREHOUSEMEN. 

B. 

Ordinary  care. 

A  warehouseman  is  only  obliged  to  bestow  ordinary  care  in 
the  custody  of  property  intrusted  to  him.  Cox  v.  Boston  &  P. 
R.  R.  Co.,  10  Met.  472;  Aldrich  v.  Boston  &  Worcester  R.  R.  Co., 
100  Mass.  31. 

Same— Failure  to  deliver— Need  not  show  precise  manner  of  the 
loss. 

A  warehouseman  who  fails  to  deliver  property  bailed  to  him 
must  account  therefor ;  if  lost  he  is  bound  to  show  that  the  loss 
occurred  without  a  want  of  ordinary  care  or  diligence  on  his  part, 
but  not  necessarily  the  precise  manner  in  which  the  loss  oc- 
curred. Lichtenhein  v.  Boston  &  P.  R.  R.  Co.,  11  Cush.  70; 
President,  Directors,  etc.,  Conway  Bank  v.  American  Express  Co., 
8  Allen,  512. 

Same — Liability  coextensive  to  possession — Ride  stated. 

The  obligation  of  warehousemen  to  exercise  ordinary  care  for 
the  protection  and  safety  of  goods  committed  to  their  custody 
depends  upon  and  is  coextensive  with  actual  and  continued 
possession.  If  they  lose  that  possession  through  any  omission 
of  the  duty  thus  attaching  to  them  in  that  relation,  they  are 
liable  for  all  the  consequences  that  ensue  from  it.  On  the 
other  hand,  if  without  fault  on  their  part  the  property  is  taken 
from  their  possession,  or  lost  by  means  for  which  they  are  not 
responsible,  they  are  not  required  to  go  in  pursuit  of  it,  or  to 
incur  any  expense  of  time,  labor  or  money  in  endeavoring  to 
discover  or  regain  it.  Sessio7is  &  Ano.  v.  Western  R.  R.  Cor- 
poration, 16  Gray,   132. 

Conversion— Delivery  to  officer — Attachment  does  not  consti- 
tute. 

The  defendant,  a  warehouseman,  opened  the  door  of  a  com- 
partment in  his  warehouse  in  which  the  property  of  the  plain- 
tiff was  stored  and  allowed  an  officer  to  attach  the  same.     This 


MAssAcm  :m<:TTs.  341 

was  held  in  nowise  to  constitute  it  voluntary  surrender  of  the 
property  by  the  warehouseman,  and  further  that  the  warehouse- 
man, in  allowing  this  attachment  to  be  made,  was  not  guilty  of 
conversion.  Cleg()  v.  Boston  Storage  Warehouse  Co.,  149  Mass. 
454. 

Conversion — Warehouseman  with  power  to  receive  offers  not  au- 
thorized to  sell — Lien — Innocent  purchaser. 

The  plaintiff  at  the  request  of  one  J.,  who  was  a  commission 
merchant  and  warehouseman,  made  certain  advances  to  J.  upon 
wool  consigned  to  him.  The  plaintiff"  received  from  J.  the  re- 
ceipt from  the  railroad  for  the  wool  and  never  surrendered  pos- 
session thereof.  Tlie  wool  was  stored  in  J.  's  warehouse  and  he 
was  given  authority  by  the  plaintiff  to  negotiate  sales  thereof, 
to  be  reported  to  plaintiff  for  approval  before  being  concluded. 
J.  was  a  part  owner  of  the  wool  but  this  fact  was  unknown  to 
plaintiff.  Without  the  knowledge  of  plaintiff,  J.  fraudulently 
pledged  the  wool  to  defendant  for  advances;  the  defendant  had 
the  wool  removed  to  another  warehouse,  but  he  did  not  de- 
mand of  J.  a  bill  of  lading  or  other  proof  of  title  and  he  knew  J. 
was  engaged  in  business  as  a  warehouseman.  Upon  the  above 
state  of  facts  it  was  held  that  the  plaintiff 's  rights  as  con- 
signee in  the  wool  were  not  lost  by  placing  the  same  in  the  ware- 
house of  J.  to  be  stored  until  it  coukl  be  sold.  Further  that  it 
was  not  the  doctrine  in  Massacliusc^tts  that  even  if  the  plaintiff 
had  known  that  J.  was  a  part  owner  of  the  wool  that  the  tie- 
posit  of  it  in  good  faith  with  him  as  a  warehouseman,  with  au- 
thority to  negotiate  sales  as  a  broker,  to  be  concluded  by  plain- 
tiff, would  have  enabled  J.  to  have  vested  a  good  title  in  an 
innocent  purchaser  by  a  sale  made  by  him  on  his  own  account. 
Further,  that  J.  was  not  a  "  factor  or  other  agent  intrusted 
with  the  possession  of  merchandise  for  the  purpose  of  sale," 
within  the  meaning  of  c.  54,  sec.  2  Gen.  Stats.,  nor  was  J.  "  a  per- 
son intrusted  with  merchandise,  and  having  authority  to  sell 
or  consign  the  same"  within  the  meaning  of  c.  54,  sec.  3,  Gen. 
Stats.  Finally  that  the  plaintiff  held  a  valid  lien  against  tlio 
property;  that  defendant  having  sold  the  same  this  amounted 
to  a  conversion  thereof,  for  whicli  the  defendant  was  liable  to 
the  plaintiff.     Thatcher  v.  Moors,  134  Mass.   156. 


342  MASSACHrsKTTS   DKCISIONS. 

G. 

Bonded  warehouses — Private  warehouse — "Warehoused^'  con- 
strued. 

The  plaintiff,  an  importer,  brought  an  action  against  the  de- 
fendant, as  collector  of  the  port  of  Boston,  for  money  paid  to 
the  defendant  to  which  the  latter  was  not  entitled,  under  the 
warehouse  law.  It  appeared  that  when  a  quantity  of  molasses, 
consigned  to  the  plaintiff  arrived  at  the  port  of  Boston,  the  public 
warehouses  at  that  port  were  filled.  The  plaintiff  thereupon 
procured,  at  his  own  expense,  accommodations  in  private  ware- 
houses, and  the  defendant  assented  to  the  deposit  of  the  mo- 
lasses at  the  places  secured  by  the  plaintiff,  on  condition  that 
the  latter  would  pay  to  the  defendant,  as  collector  for  said 
port,  one  half  the  usual  rates  of  storage  charges  on  similar 
goods.  It  does  not  affirmatively  appear  that  while  the  goods 
w'ere  stored  government  officials  were  in  charge  thereof,  but 
in  the  absence  of  such  testimony  the  court  assumed  that  this 
was  the  case.  On  the  withdraw^al,  the  sum  of  $145.19  was 
demanded  of  the  plaintiff  by  the  defendant,  which  was  accord- 
ingly paid  to  him.  The  court  held  that  from  the  agreed  state- 
ment of  facts,  which  was  substantially  as  above,  the  action 
could  not  be  maintained.     Atkins  v.  Peaslee,  1  Clif.  446. 

Same — Withdraival  through  fraud — Misdelivery  of  spirits — 
Forfeiture. 

It  appeared  that  spirits  had  been  fraudulently  withdrawn 
from  a  government  warehouse,  without  the  payment  of  the 
internal  revenue  tax,  and  had  been  mixed  with  other  spirits. 
In  an  action  by  the  government  against  the  spirits,  it  was 
contended,  in  the  behalf  of  one  of  the  claimants,  that  as  the 
collector  had  surrendered  the  spirits  upon  the  production  of  a 
permit,  the  delivery  had  been  made  with  proper  authority. 
But,  as  it  appeared  that  such  permit  had  been  obtained  by 
fraud,  it  was  held,  as  respects  the  perpetrator  of  the  fraud, 
the  permit  was  a  mere  nullity.  It  was  further  held  that  as 
the  spirits  seized  came  from  the  rectifiers,  mixed  with  the 
spirits  fraudulently  withdrawn  from  the  bonded  warehouse 
and  other  lots  belonging  to  the  claimants,  so  that  the}'-  could 
not  be  distinguished,  the   United  States  were  entitled  to  a  for- 


MASSACHUSETTS.  343 

feiture  of  a  fair  proportion  of  the  mixture,  even  though  the 
mixture  might  have  been  innocently  made.  United  States  v. 
Two  Hundred  and  Seventy-eight  Barrels  of  Distilled  Spirits, 
3  CHf.  261. 

H. 

Lien  for  storage  charges — Partial  delivery — Lien  on  remainder 

for  full  storage  charges. 

The  plaintiff,  the  owner  of  goods,  shipped  the  same  by  a 
common  carrier  to  one  who  intended  to  purchase  them,  but 
owing  to  a  defect  in  the  quality,  the  latter  refused  to  accept 
the  goods.  The  carrier  thereupon  stored  the  goods  and  about 
ten  days  thereafter,  notified  the  consignee  that  it  had  done  so. 
Subsequently  an  arrangement  was  made  between  the  owner 
and  the  consignee  for  the  sale  of  the  goods  to  the  latter.  The 
carrier  delivered  a  portion  of  the  goods  but  refused  to  sur- 
render the  balance  unless  the  warehouseman's  storage  charges 
were  paid.  It  was  held  that  this  contention  was  correct  and 
that  the  warehouseman  had  a  lien  on  the  goods  retained  for 
the  full  amount  of  charges  against  all  of  the  goods.  Barker  v. 
Brown,  138  Mass.  340  ;  Lane  v.  Old  Colony  &  Fall  River  R.  R., 
14  Gray,  143  ;  New  Haven  &  Northampton  Co.  v.  Campbell, 
128  Mass.  104. 

M. 

Effect  of  pledge — Possession  by  pledgor — Lien  not  always  de- 
stroyed. 

The  mere  fact  that  the  pledgor  has  possession,  so  that  in 
him  the  possession  and  the  general  ownership  are  united,  does 
not  as  a  matter  of  law  destroy  the  lien  of  the  pledgee,  without 
regard  to  the  circumstances  under  which,  or  the  purposes  for 
which,  the  possession  was  obtained.  Thacher  v.  Moors,  134 
Mass.  156  ;  Macomber  v.  Parker,  14  Pick.  497  ;  Walcott  v. 
Keith,  2  Foster,  196. 

N. 

Loss  by  fire — At  night — Employees  present  under  no  obligation 
to  rescue  goods. 

In  an  action  against  a  warehouseman  for  the  loss  of  goods 
which  had  been  destroyed  by  a  fire,  which  consumed  the  ware- 


344  MASSACHUSETTS   DECISIONS. 

house  and  its  contents,  the  evidence  showed  that  the  em- 
ployees of  the  defendant  were  present  during  the  fire  and  might, 
with  safety  to  themselves,  have  rescued  property  belonging  to 
the  plaintiff,  it  was  held  that  the  warehouseman  was  not  liable; 
that  it  was  no  part  of  the  duty  of  the  employees  of  the  de- 
fendant to  attend  to  the  removal  of  goods  from  the  warehouse 
in  the  case  of  fire  at  night.  They  were  under  no  obligation  to 
be  present  during  the  fire  and  their  voluntary  attendance  im- 
posed upon  them  no  legal  liability  for  the  mere  omission  to  do 
anything  when  on  the  spot.  Whatever  they  did  was  done  by 
them  as  volunteers,  as  neighbors,  and  as  citizens — not  as  em- 
ployees of  the  defendant.  Aldrich  v.  Boston  &  Worcester  R.  R. 
Co.,  100  Mass.  31. 

Same — Carrier  liable  as  warehouseman — When  Public  Statutes, 
chapter  112,  section  214,  not  applicable. 

The  defendant,  a  common  carrier,  was  sued  in  tort  by  the 
plaintiff  for  the  loss  of  his  goods,  which  were  destroyed,  while 
in  a  freight  house  belonging  to  the  defendant,  by  fire  communi- 
cated from  a  locomotive  of  defendant.  It  appeared  that  the 
goods  had  been  carried  by  the  defendant  for  the  plaintiff  and 
that  the  transit  had  terminated.  The  court  held  that  the  ac- 
tion could  not  be  maintained  under  Public  Statutes,  chap.  112, 
sec.  214.  The  goods  of  the  plaintiff  having  been  destroyed 
while  in  the  possession  of  the  defendant  pursuant  to  a  contract 
made  between  them,  the  plaintiff  must  seek  his  remedy  under 
such  contract.  Bassett  v.  Connecticut  River  R.  R.  Co.,  145 
Mass.  129. 

Same — Same — Same — Property  still  held  under  contract  for 
carriage. 

Where,  in  a  case  similar  to  the  above,  it  appeared  that  the 
contract  for  carriage  had  not  been  completed  and  that  the 
goods  were  still  in  the  possession  of  the  defendant,  as  carrier, 
either  in  its  cars  or  in  its  warehouse  for  a  reasonable  time  in 
which  the  plaintiff  could  remove  the  same,  the  carrier  was  held 
liable  for  the  loss  of  the  goods.  Blaisdell  v.  Connecticut  River 
R.  R.  Co.,  145  Mass.  132. 


MASSACHUSETTS.  345 

Misdelivery — Change  of  ownership  in  warehouse — Goods  in 
wrong  name. 

A  suit  was  instituted  against  a  warehouseman  who  had  pur- 
chased a  warehouse  from  one  previously  engagtMl  in  the  business 
and  who  took  an  assignment  -thereof,  together  with  a  hst  of  all 
the  property  in  the  warehouse  and  the  n.-mics  of  the  several 
owners  thereof.  It  appeared  from  the  evidence  that  there;  was 
a  mistake  made  in  such  list  and  goods  which,  in  reality,  be- 
longed to  A.  were  therein  stated  to  belong  to  H.  The  ware- 
houseman notified  H.  to  remove  the  goods,  which  he  did.  The 
evidence  showed  that  the  warehouseman  acted  entirely  in  good 
faith  in  the  matter.  The  court  held,  in  the  action  by  the  owner 
for  the  recovery  of  these  goods,  that  the  delivery  by  the  defend- 
ant to  H.  did  not  constitute  a  conversion  and  that  the  ware- 
houseman was  not  liable  to  the  owner  therefor.  Parker  v. 
Lombard  and  another,  100  Mass.  405. 

Pleading — Burden  of  proof — Instruction  to  jury. 

In  an  action  against  a  carrier,  charging  it  with  liability  as  a 
warehouseman,  the  defendants  alleged  that  the  goods  had  been 
fraudulently  abstracted  from  their  custody.  The  judge  ruled 
that  to  maintain  the  action,  it  was  only  necessary  for  the  plain- 
tiff, in  the  first  instance,  to  show  the  receipt  of  the  goods  by 
the  defendants  and  their  failure  to  deliver  them  upon  demand; 
that  this  imposed  upon  the  defendants  the  duty  of  accounting 
for  them,  but  that  the  defendants  were  not  bound  to  show 
affirmatively  in  what  precise  manner  the  loss  occurred,  but 
only,  if  they  were  unable  to  prove  how  it  occurred,  to  show 
clearly  that  they  had  exercised  ordinary  care  respecting  the 
goods,  and  that  the  loss  did  not  happen  from  any  negligence 
or  want  of  ordinary  care  on  their  part.  The  judge  further 
ruled,  that  if  the  property  were  taken  by  mistake  from  the 
depot,  and  the  defendants  exercised  ordinary  care  in  the  mat- 
ter, the  defendants  would  not  be  answerable  for  a  loss  under 
such  circumstances,  but  that  if  the  agent  of  the  defendants 
delivered  it  by  mistake  to  a  wrong  person,  the  defendants  would 
be  responsible.  On  appeal  the  above  ruling  held  correct. 
Lichtenhein  v.  Boston  &  Providence  R.  R.  Co.,  11  Cush.  70. 


346  MASSACHUSETTS   DECISIONS. 

Same — Burden  of  proof  on  plaintiff. 

The  plaintiff  alleged  that  the  defendant  had  been  guilty  of 
negligence  in  the  care  and  custody  of  plaintiff's  goods.  The 
plaintiff  simply  proved  non-delivery  on  demand  and  the  court 
instructed  the  jury  to  find  for  defendant,  stating  that  plaintiff 
must  show  the  alleged  negligence.  This  instruction  held  cor- 
rect on  appeal.  Lamb  v.  Western  R.  R.  Cor.,  7  Allen,  98;  Roberts 
V.  Gurney,  120  Mass.  33;  Willett  et  al.  v.  Rich  et  ah,  142  Mass.  356; 
Murray  v.  International  Steamship  Co.,  170  Mass.  166;  Gay  et  al. 
V.  Bates,  99  Mass.  263. 

Same — When  burden  of  proof  on  warehouseman — Where  declara- 
tion alleges  demand  and  refusal  but  not  negligence. 

The  plaintiff  sued  the  defendant,  a  railroad  corporation,  al- 
leging that  it  was  liable  as  a  warehouseman,  that  the  prop- 
erty had  been  received  by  it  and,  upon  demand,  redelivery  had 
been  refused.  In  the  answer  the  defendant  admitted  that  it 
received  the  property,  and  alleged  that  wdthout  any  neglect, 
default,  or  caselessness  whatever  on  its  part,  the  same  was  stolen 
from  its  warehouse.  Upon  these  pleadings  it  was  held,  on  appeal, 
that  this  form  of  declaration  imposed  the  duty  and  burden 
upon  the  defendant  who  had  put  in  special  matter  in  defense 
of  the  action.  The  case  was  clearly  distinguished  from  Lamb 
V.  Western  Railroad  Corporation,  7  Allen,  98,  in  that  the  allega- 
tion of  the  declarations  were  materially  different.  In  the  pres- 
ent case,  the  court  held  that  the  breach  of  contract  was  not 
denied  by  the  defendant,  the  issue  being  on  the  new  matter 
alleged  by  it,  and  therefore,  the  burden  was  upon  the  party 
alleging  such  new  matter — the  defendant.  Cass  v.  Boston  & 
Lowell  R.  R.  Co.,  14  Allen,  448. 

Same — Warehouseman  need  not  show  precise  manner  of  loss. 

"Where  an  action  w^as  instituted,  charging  the  defendant  with 
liability  as  a  warehouseman,  for  the  non-delivery  of  goods  in- 
trusted to  him,  the  court  held  that  the  defendant  was  not 
bound  to  show  the  precise  manner  in  which  the  loss  occurred, 
but,  if  unable  to  do  this,  he  might  exonerate  himself  from  that 
burden  by  clearly  showing  that  the  loss  did  not  happen  from 


MASSACIll'SETTS.  347 

any  negligence  or  want  of  care  on   his  part.     Lichtenkdn  v. 
Boston  ii'  Providence  R.  R.  Co.,  11  Cush.  70. 

Same — Evidence — Letter  offerinq  to  compromise,  inadmissible. 

A  letter,  written  by  an  employee  of  the  defendant,  a  ware- 
houseman, before  the  institution  of  the  suit,  to  the  plaintiff, 
offering  to  allow  the  goods  to  be  removed  free  of  storage  charges, 
for  the  purpose  of  settling,  in  this  way,  a  claim  foi-  damages  to 
the  goods  stored,  which  damages  were  alleged  to  have  resulted 
from  the  condition  of  the  warehouse,  held,  not  admissible  in 
evidence.     Gaij  et  al.  v.  Bates,  99  Mass.  263. 

Damages  for  loss  of  property — Right  of  consignee  to  recover. 

A  consignee  of  merchandise  is  entitled  to  recover  full  dam- 
ages, and  is  responsible  over  to  his  consignor  for  any  balance  re- 
maining after  satisf3dng  his  claims  upon  the  i:)roperty.  Thacher 
V.  Moors,  134  Mass.  156  ;  UUman  v.  Barnard,  7  Gra}^,  554. 

Same — Measure  of  damages — Ordinary  rule. 

The  ordinary  rule  of  damages  is  the  market  value  of  the 
property  at  the  time  of  the  conversion,  with  interest  from  that 
time.     Thacher  v.  Moors,  134  Mass.  156. 

P. 

Loss  by  fire — Burden  of  proof  on  plaintiff  to  show  negligence. 

An  instruction  to  the  jury  that  the  burden  of  proof  was  on 
the  plaintiff  to  satisfy  them  that  the  fire  was  due  to  defend- 
ant's negligence  was  correct.  Cox  v.  Central  Vermont  R.  R., 
170  Mass.  129. 

Same — Testimony  showing  intoxication  of  watchman,  receivable. 

It  was  held  competent  in  an  action  against  a  warehouseman, 
for  the  loss  of  goods  destroyed  by  fire,  to  show  that  the  night 
watchman  employed  by  the  defendant  was  one  in  the  habit 
of  becoming  intoxicated;  that  the  watchman  had  indulged  in 
this  habit  at  a  period  several  years  before  the  occurrence,  and 
that  such  habit  had  continued  to  the  time  of  the  fire.  This 
evidence  was  receivable  on  the  ground  that  the  defendant,  in 
the  exercise  of  reasonable  care,  ought  to  have  known  of  the 


348  MASSACHUSETTS   t>?:CTSIONS. 

habits  of  his  watchman.     Cox  v.  Central  Vermont  R.  R.,  170 
Mass.  129. 

Same — Safety  of  place  of  storage — Question  for  the  jury. 

Whether  or  not  the  phice  which  the  defendant  furnished  for 
the  plaintiff  to  store  his  goods  was  reasonably  safe  is  a  question 
for  the  jury.  Nealand  v.  Boston  &  Maine  R.  R.,  161  Mass.  67; 
Nichols  et  al.  v.  Smith  et  al,  115  Mass.  332. 

Q- 

Warehouse  receipt — Negotiability. 

A  warehouse  receipt,  even  when  in  terms  running  to  order 
and  assigns,  is  not  negotiable  like  a  bill  of  exchange,  but  merely 
a  symbol  or  representative  of  the  goods  themselves,  and  the 
rights  arising  out  of  such  a  receipt  correspond,  not  to  those 
arising  out  of  the  indorsement  of  a  negotiable  promise  for  the 
payment  of  money,  but  those  arising  out  of  the  actual  delivery 
of  the  property  itself  under  similar  circumstances.  Commercial 
Nat.  Bank  v.  Bemis  et  al.,  177  Mass.  95;  Stollenwerck  v.  Thacher, 
115  Mass.  224. 

Same — Same — Issued  by  private  warehouseman. 

The  plaintiff  held  a  receipt,  for  goods  stored,  issued  by  one 
who  was  not  a  public  warehouseman  in  the  meaning  of  the 
laws  of  Massachusetts.  The  receipt  was  indorsed  to  the  plain- 
tiff as  collateral  security  for  the  payment  of  a  debt  due  him  by 
the  bailor.  The  receipt  was  not  in  terms  negotiable.  Subse- 
quently, the  goods  represented  by  the  receipt  were  attached 
in  an  action  against  the  owner.  Held  that  the  plaintiff  did  not 
take  title  to  the  goods  as  against  the  attaching  creditor.  Hall- 
garten  et  al.  v.  Oldham,  135  Mass.  1. 

Same — Pledge  of. 

Where  one  held  a  warehouse  receipt,  as  pledgee,  and  in  turn 
pledged  the  receipt  to  secure  a  claim  to  him,  it  was  held  that 
the  title  of  the  owner  of  the  receipt  was  not  impaired.  There 
is  no  more  reason  to  infer  that  one  having  possession  of  a  receipt 
is  the  owner  thereof  than  that  his  interest  is  something  less  than 
that.     Commercial  Nat.  Bank  v.  Bemis  et  al.,  Yll  Mass.  95. 


MASSACHUSETTS.  349 

Order  on  warehouseman — Refusal  to  deliver — Jury — Usage. 

The  defendants,  as  public  warehousemen,  received  tor  storage 
one  hundred  and  fifty  barrels  of  Hour,  portions  of  which  were 
delivered  from  time  to  time,  under  plaintiffs  orders,  until  but 
twelve  barrels  remained.  The  plaintiff  delivered  t(j  the  de- 
fendants an  order  for  the  balance  due.  With  this  order,  the 
defendants  refused  to  comply,  insisting  that  the  order  should 
specify  the  number  of  barrels.  It  appeared  that  there  was  no 
express  agreement,  between  the  parties,  that  orders  should 
specify  the  number  of  barrels,  and  that  there  was  no  such  usage 
of  trade  in  Boston.  The  court  instructed  the  jury  that  the 
question  of  the  propriety  and  reasonableness  of  the  demand 
of  the  defendant  was  one  for  them  to  decide.  Held  that  the 
order  for  the  balance  of  the  flour  held  by  the  defendants  was 
sufficient;  that  they  should  have  delivered  the  balance  upon 
the  presentation  of  the  ortler  and  that  they  were  liable  for  their 
failure  to  do  so.     Porter  v.  Hills,  114  Mass.  106, 

R. 

Bill  of  lading — Defined — Shipper  liable  for  freight  charges. 

It  is  a  settled  doctrine  that  a  bill  of  lading  is  a  written  simple 
contract  between  the  shipper  of  the  goods  and  the  shipowner, 
the  latter  to  carry  the  goods  and  the  former  to  pay  the  stipu- 
lated compensation  for  the  services  performed.  The  shipper  is 
the  bailor  and  he  is  liable  for  the  compensation  to  be  paid  the 
shipowner.  The  master  is  not  bound,  at  his  peril,  to  enforce 
payment  of  freight  by  the  consignee.  Wooster  et  al.  v.  Tarr 
and  another,  8  Allen,  270;  Blanchard  v.  Page,  8  Gray,  281. 

Same — Proof  of  loss — Burden  of  proof. 

In  an  action  on  a  bill  of  lading,  by  which  a  shipowner  prom- 
ises to  deliver  the  goods  "in  like  good  order  and  condition  as 
received,  dangers  of  fire  and  navigation  excepted"  after  proof 
of  loss  and  failure  to  deliver,  the  burden  of  proof  is  on  him  to 
bring  such  loss  and  failure  to  deliver  within  the  exception. 
Alden  v.  Pearson,  3  Gray,  342. 

Same — Negotiability. 

A  bill  of  lading,  though  not  strictly  a  negotiable  instrument, 


350  MASSACHUSETTS    DECISIONS. 

like  a  bill  of  exchange,  is  the  representative  of  the  property  itself 
and  is  the  means  by  which  property  may  be  transferred  in  a 
manner  equivalent  to  an  actual  delivery  of  the  property. 
Forbes  et  al.  v.  Boston  &  Lowell  R.  R.  Co.,  133  Mass.  154. 

Saine — Not  a  '^negotiable  mstrument." 

A  bill  of  lading  is  not  a  negotiable^  instrument  in  the  original 
sense  of  the  word,  and  indorsement  and  delivery  of  it  for  value 
operates  to  transfer  the  title  of  the  goods  described  in  it,  but 
not  as  an  assignment  of  the  contract  except  by  force  of  some 
statute.  Cox  v.  Central  Vermont  R.  R.,  170  Mass.  129;  Stollen- 
werck  v.  Thacher,  115  Mass.  224;  Fi7in  v.  Western  R.  R.,  112 
Mass.  524. 

Same — As  collateral. 

One  who  holds  a  bill  of  lading  as  collateral  security  for  the 
payment  of  a  debt  has  such  title  in  the  property  represented 
as  to  enable  him  to  recover  of  any  one  who  wrongfully  converts 
it.  Forbes  et  al.  v.  Boston  &  Lowell  R.  R.  Co.,  133  Mass.  154; 
Chicago  National  Bank  v.  Bayley,  115  Mass.  228;  DeWolf  v. 
Gardener,  12  Cush.  19;  Dows  v.  National  Exchange  Bank,  91 
U.  S.  618. 

Same — Same — Fraud  on  the  part  of  director  of  bank. 

The  plaintiff,  the  owner  of  sugar,  shipped  the  same  to  an 
agent  for  the  purpose  of  sale.  From  the  bill  of  lading  it  ap- 
peared that  the  goods  had  been  shipped  subject  to  the  order 
of  the  consignee.  The  consignee  pledged  the  bill  of  lading 
with  the  defendant  bank,  of  which  he  was  a  director,  as  security 
for  a  large  loan  made  to  him  by  the  bank,  he  being  present  at 
the  directors'  meeting  which  authorized  tlie  loan.  It  was  showm 
that  the  bank  acted  in  entire  good  faitli  in  the  matter.  It  was 
attempted,  by  the  plaintiff,  to  impute  the  fraud  of  the  con- 
signee to  the  defendant  bank.  It  was  held  that  this  could  not 
be  done,  and  judgment  was  accordingly  given  for  the  defend- 
ant. Innerarity  et  al.  v.  Merchants'  National  Bank,  139  Mass. 
332. 

Bill  of  lading — Exemption  in — Burden  of  proof. 

Where  there  was  a  stipulation  in  a  bill  of  lading  that  notice 


MASSACHUSETTS.  351 

of  loss  must  be  given  within  thirty  days,  the  court  held  that 
the  burden  of  proof  was  on  the  plaintiff  to  show  that  such  stipu- 
lation was  a  just  and  reasonable  one.  Carriers  may,  by  stipu- 
lation in  bills  of  lading,  limit  their  common-law  liability  if  the 
effect  is  not  to  relieve  them  of  the  C()iis(>(juenc(!s  of  their  own 
negligence,  or  that  of  their  servants,  and  the  contracts  are,  in 
themselves,  just  and  reasonable.  Cox  v.  Central  Vermont  R.  R., 
170  Mass.  129;  Lewis  v.  Smith,  107  Mass.  334;  Liverpool  cfc  Great 
Western  Steam  Co.  v.  Phenix  Ins.  Co.,  129  U.  S.  397;  Bank  of 
Kentucky  v.  Adams  Ex.  Co.,  93  U.  S.  174;  Hoadley  v.  Northern 
Transportation  Co.,  115  Mass.  304. 


852  MICHIGAN    LAWS. 


CHAPTER  XXII. 
MICHIGAN. 

LAWS  PERTAINING  TO   WAREHOUSEMEN. 

Who  deemed  to  be  a  warehouseinaii : 

The  People  of  the  State  of  Michigan  enact :  That  every  person, 
firm,  company,  association,  warehouse  compan}'-  or  other  cor- 
poration, lawfully  engaged  in  the  business  of  storing  for  hire 
goods,  wares,  merchandise,  grain,  flour,  provisions,  or  other 
products,  commodity  or  personal  property,  excepting  persons 
or  companies  engaged  in  the  business  of  storing  grain  in  elevators, 
shall  be  deemed  and  held  to  be  a  warehouseman  under  this  act. 
Compiled  Laws,  Mich.  1897,  ch.  127,  sec.  1. 

Wareliousemau  to  have  a  lien  on  goods  : 

Every  warehouseman  shall  have  a  lien  on  all  goods,  wares, 
merchandise  and  other  personal  property  deposited  and  stored 
with  him,  for  his  storage  charges,  and  for  all  moneys  advanced 
by  him  for  cartage,  labor,  insurance,  weighing,  coopering  and 
other  necessary  expenses  to  or  on  such  property;  and  such  lien 
shall  extend  to  and  include  all  legal  demands  for  storage  and 
expenses  paid  as  above,  which  he  may  have  against  the  owner 
of  said  property;  and  it  shall  be  lawful  for  him  to  detain  said 
property  until  such  money  is  paid.     Id.  ch.  127,  sec.  2. 

Above  act  construed — Lien  extends  to  all  such  charges 
against  the  owner — If  possession  be  lost  and  subsequently 
regained,  lien  revives : 

A  warehouseman  lost  possession  of  goods  which  were  in- 
trusted to  him  and  at  the  time  his  charges  for  storage  were 
unpaid  ;  subsequently  he  obtained  possession  of  the  goods. 
In  an  action  against  him  to  recover  possession  of  the  goods  the 
warehouseman  claimed  a  lien  thereon  for  his  charges  due  on  the 
former  storage  as  well  as  for  the  latter;  it  was  held  that  under 


IVUCHIGAN.  353 

this  statute  he  had  a  vahtl  hen  against  the  goods  for  his  charges 
for  both  the  former  and  latter  storage.  Kaufman  v.  Leonard 
(Wayne  County  Circuit  Court,  May,  1903,  not  yet  reported) 
following  SHllman  v.  Kimbcrly,  121  N.  Y.  393,  aff'd  53  Hun,  531. 

Lien  on  portion  of  goods  : 

Where  a  quantity  of  goods,  wares,  merchandise,  or  other 
personal  property  is  stored  at  one  time  and  as  one  parcel,  and 
portions  of  it  are  from  time  to  time  (lelivercnl  without  j^ayment 
of  storage  charges,  said  warehouseman  shall  have  a  lien  upon 
the  portion  left  for  storage  and  for  expenses  paid  as  above  on 
the  whole.     Compiled  Laws,  Mich.  1887,  ch.  127,  sec.  3. 

Warehouseman  to  liave  a  lien  on  property  for  advanced 
charges — When  not  liable  for  damage  to  property  : 

Wherever,  in  pursuance  of  any  custom  or  by  request  of  the 
owner  or  consignee,  such  warehouseman  on  receiving  from  a 
common  carrier  goods,  wares  or  merchandise,  or  other  personal 
property  in  apparent  good  order,  may  advance  the  freight  due 
to  said  carrier  on  said  property,  he  shiUl  have  a  lien  on  said  prop- 
erty for  the  amount  of  said  freight  paid,  in  addition  to  his  own 
charges  for  storage  and  expenses  as  above;  and  if  he  shall  de- 
liver said  goods  to  the  owner  or  consignee  without  payment,  he 
may  afterwards  recover  of  such  owner  or  consignee  the  amount 
of  said  storage  paid.  And  if  the  property  has  been  injured  be- 
fore coming  to  the  possession  of  said  warehouseman,  which 
injury  is  not  apparent  or  known  to  him  before  or  at  the  time  of 
receiving  the  property,  the  owner  or  consignee  nuist  look  to 
the  carrier,  and  cannot  recoup  his  damages  in  an  action  by  the 
warehouseman.     Id.  ch.  127,  sec.  4. 

Lien  on  property : 

Whenever  any  warehouseman  shall,  at  the  request  of  the 
owner  of  personal  property  stored  with  him,  and  during  the 
time  that  said  property  so  remains  in  storage,  pay  any  charges 
or  liens  on  said  property,  or  loan  any  money  to  said  owner  on 
said  property,  and  the  fact  and  the  amount  of  saitl  loan  sliall 
be  specified  in  or  indorsed  on  the  warehouse  receipt  <;i\('ii  for 
said  property,  said  warehouseman  sliall  have  a  lien  on  said 
property  for  the  amount  of  said  advance  or  loan  and  interest. 
23 


354  MICHIGAN    LAAYS. 

and  this  lien  :>liall  be  good  as  against  any  assignee  of  said  re- 
ceipt, and  as  against  every  subsequent  purchaser  or  incum- 
brancer of  said  property.     Id.  ch.  127,  sec.  5. 

Lien  shall  be  parainoiiiit  to  that  of  a  chattel  mortgage — 
Kight  of  mortgagee  : 

The  hen  of  a  warehouseman  for  customary  storage  charges, 
and  for  necessary  expenses  paid  in  reference  to  the  stored  prop- 
erty, as  above  specified,  shall  be  paramount  to  that  of  a  chattel 
mortgage  of  the  property  in  all  cases  where  said  mortgage  shall 
have  been  made  after  said  goods  shall  have  been  received  for 
storage  by  said  warehouseman.  But  this  shall  not  deprive  the 
mortgagee  of  the  right  which  he  might  otherwise  have  of  tak- 
ing possession  of  the  goods  under  his  mortgage,  upon  paying 
the  charges  up  to  the  date  of  taking  such  possession.  Id. 
ch.  127,  sec.  6. 

Record  of  property  to  be  kept — Receipt : 

Every  warehouseman  shall  keep  a  record  book,  in  w^hich  shall 
be  entered  immediately  upon  its  receipts,  a  description  of  all 
property  deposited  with  him  for  storage,  including  the  brand 
or  distinguishing  marks  on  such  property,  together  with  the 
date  of  the  reception  of  said  property  and  the  name  and  ad- 
dress of  the  owner  thereof.  And  every  receipt  given  for  any 
such  property  shall  also  contain  the  same  particulars,  and  shall 
be  evidence  in  any  action  against  said  warehouseman.  Id. 
ch.  127,  sec.  7. 

Receipts  negotiable— Original  receipt  to  be  surrendered 
when — Proviso  as  to  "  non-negotiable  receipts  "  : 

Warehouse  receipts  shall  be  negotiable,  and  may  be  trans- 
ferred by  indorsement  and  delivery  thereof,  and  said  indorse- 
ment may  be  either  in  blank  or  to  the  order  of  another.  Such 
indorsement  shall  be  deemed  to  be  a  warranty  that  the  in- 
dorser  has  good  title  and  lawful  authority  to  sell  the  property 
named  in  such  receipt  subject,  however,  to  the  lien  of  the  ware- 
houseman for  freight  and  charges  on  said  property.  No  prop- 
erty covered  by  such  receipt  or  voucher  shall  be  delivered  by 
said  warehouseman  except  on  the  surrender  and  the  cancella- 
tion of  said  original  receipt  or  voucher;  or  in  case  of  partial  sale 


MICHKJAN.  355 

or  release  of  the  said  j)r()p('rty,  by  the  written  assent  of  the 
holder  of  said  receipt  or  \()U('h('r  indorsed  thereon:  Proridcd, 
That  all  warehouse  receij^ts  or  Nouchers  which  sliall  have  the 
words  "non-negotiable"  plainly  written,  printed  or  stamped 
on  the  face  thereof  shall  be  exempt  from  the  provisions  of  this 
section.     Id.  ch.  127,  sec.  8. 

Receipt  not  to  be  issued  for  property  not  actually  stored  : 

No  warehouseman  shall  issue  any  receipt  or  voucher  for  any 
goods,  wares,  merchandise  or  other  personal  ]:)roperty  to  any 
person  or  persons  purporting  to  be  the  owner  or  owners  thereof, 
unless  such  property  shall  have  been  actually  received  into 
store  or  on  the  premises  of  such  warehouseman,  and  shall  be 
in  store  or  on  the  premises  as  aforesaid,  and  under  his  control, 
at  the  time  of  issuing  such  receipt  or  voucher.  Id.  ch.  127, 
sec.  9. 

Receipt  not  to  be  issued  as  security  for  money  loaned  : 

No  warehouseman  shall  issue  any  receipt  or  voucher  for  any 
pei'sonal  property  to  any  person,  or  persons  or  corporation  as 
security  for  money  loaned  or  for  other  indebtedness  or  in- 
demnity, unless  such  property  so  receipted  for  shall  be,  at  the 
time  of  issuing  such  receipt  or  voucher,  the  property,  without 
incumbrance,  of  said  warehouseman,  and  shall  be  actually  in 
store  and  under  the  control  of  said  warehouseman  at  the  time 
of  giving  such  receipt  or  voucher,  and  if  such  property  be  in- 
cumbered by  prior  lien,  then  the  character,  extent  and  amount 
of  that  lien  shall  be  fully  set  forth  and  explained  in  the  receipt. 
Id.  ch.  127,  sec.  10. 

Duplicate  receipt : 

No  warehouseman  shall  issue  any  second  or  duplicate  re- 
ceipt for  any  goods,  wares,  merchandise  or  other  personal  jiro])- 
erty  while  any  former  receipt  or  voucher  for  any  such  property 
as  aforesaid,  or  any  part  thereof,  shall  be  outstanding  and  un- 
cancelled, without  writing  or  stamping  in  ink  across  the  face 
of  the  same  ''duplicate."     Id.  ch.  127,  sec.  11. 

Return  of  receipt : 

No  warehouseman  shall  sell  or  incumber,  ship,  transfer,  or  in 


356  MICHIGAN    LAWS. 

any  manner  remove  beyond  his  innnediate  control,  any  goods, 
wares,  merchandise,  or  other  personal  property  for  which  a  re- 
(*(Mpt  shall  have  been  given  by  him  as  aforesaid,  whether  re- 
ceived for  storing,  shipping,  grinding,  manufacturing  or  other 
purposes,  without  the  return  of  such  receipt.  Id.  ch.  127, 
sec.  12. 

Penalty  for  violation  of  provisions  of  tliis  act : 

Any  warehouseman  who  shall  willfully  violate  any  of  the 
provisions  of  this  act  shall  be  deemed  guilty  of  a  misdemeanor, 
and  upon  conviction  thereof  shall  be  punished  by  a  fine  not  ex- 
ceeding two  thousand  dollars  in  amount,  or  by  imprisonment 
in  the  state  prison  or  county  jail  not  exceeding  two  years,  or  by 
both  such  fine  and  imprisonment ;  and  all,  and  every  person  or 
persons  aggrieved  by  the  violation  of  any  of  the  provisions  of 
this  act,  may  have  and  maintain  an  action  at  law  against  the 
person  or  persons  violating  any  of  said  provisions,  to  recover  the 
damages  which  he  or  they  may  have  sustained  by  reason  of  any 
such  violation  as  aforesaid,  before  an}^  court  of  competent  juris- 
diction, whether  such  person  shall  have  been  convicted  of  mis- 
demeanor as  aforesaid  under  this  act  or  not.  Id.  ch.  127, 
sec.  13. 

When  goods  may  be  sold— Proviso : 

Every  warehouseman  who  shall  have  had  in  his  possession 
any  goods,  wares,  merchandise  or  other  personal  property,  by 
\'irtue  of  any  agreement  or  warehouse  receipt  for  the  storage 
of  the  same,  on  which,  or  any  part  thereof,  shall  be  due  one 
year's  storage,  may  at  any  time  thereafter  proceed  to  sell  said 
property  in  the  manner  provided  in  this  act:  Provided,  how- 
ever, That  in  case  of  property  received  from  a  conmion  carrier 
as  mentioned  in  section  four  of  this  act,  upon  which  property 
said  warehouseman  shall  have  advanced  freight  charges,  and 
said  freight  charges  shall  not  be  repaid  within  three  months, 
he  may  proceed  to  sell  said  property  at  any  time  after  said 
period  of  three  months.     Id.  ch.  127,  sec.  14. 

Notice  of  sale  of  property — How  served : 

Before  any  such  sale  shall  be  made,  at  least  thirty  days'  writ- 
ten or  printed  notice  shall  be  given  to  the  person  or  persons 


MICHIGAN.  357 

in  whose  name  or  names  such  pr()|)erty  was  stored,  notifying  him 
or  them  of  the  default  in  payment  of  such  storage  charges  or 
advances,  if  made  on  said  property,  and  to  pay  the  arrears  or 
amount  (kie,  and  in  case  of  default  in  so  doing  that  such  goofls, 
wares,  merchandise  or  other  personal  property  will  be  sold  to 
pay  said  charges  and  advances,  at  the  time  and  place  to  ho. 
specified  in  such  notice.  Such  notice  may  either  be  served 
personally  upon  such  person  or  persons,  or  sent  to  him  or  them 
by  mail,  postpaid,  addressed  to  the  place  of  residence  given  at 
the  time  of  storing  said  goods  or  subsequently,  in  writing  to  the 
warehouseman.  In  the  event  that  the  person  or  persons  storing 
such  goods  or  merchandise  shall  have  parted  with  the  same,  and 
the  purchaser  shall  have  notified  the  warehouseman,  with  his 
address,  such  notice  shall  be  given  to  such  transferee  as  well 
as  to  the  person  storing  the  goods.     Id.  cli.  127,  sec.  15. 

Notice  of  sale  to  be  published  in  newspaper : 

Before  any  such  sale  shall  be  niad(^  notice  thereof  shall  also 
be  given  by  publication  once  a  week  for  three  successive  weeks 
before  the  time  of  such  sale,  in  a  newspaper  published  in  the 
county  where  such  sale  is  to  take  place.  Said  notice  shall  spec- 
ify the  time  and  place  of  sale,  a  description  of  the  property,  the 
name  of  the  owner  and  also  of  the  transferee,  if  any.  Copies 
of  said  notice  shall  also  be  posted  within  said  time  in  four  of  the 
most  public  places  in  the  city,  village  or  township  where  said 
sale  shall  be  held.     Id.  ch.  127,  sec.  16. 

Time  and  place  of  sjile— Proceeds  of  sale  : 

Such  sale  shall  be  by  public  auction  to  the  highest  bitlder, 
and  shall  be  held  between  the  hours  of  nine  in  the  forenoon 
and  six  in  the  afternoon,  and  may  be  held  (Mther  at  the  ware- 
house or  other  place  of  deposit  of  said  property.  From  the 
proceeds  of  sale,  said  warehouseman  may  retain  his  charge  for 
storage  of  the  property  and  any  advances  made  thereon  by  him, 
and  interest,  and  the  expenses  of  advertising  and  sale.  Said 
property  may  be  sold  in  bulk  or  in  parcels,  accortling  to  the 
discretion  of  the  warehouseman,  with  the  view  of  obtain- 
ing as  large  a  price  as  possible  for  the  same.  Id.  ch.  127, 
sec.  17. 


358  MICHIGAN    LAWS. 

Record  of  sale  to  be  kept — Surplus  of  sale  to  be  paid  to 
county  treasurer : 

Such  warehouseman  shall  make  an  entry  in  a  book  kept  for 
that  purpose,  of  all  sales  made  as  aforesaid,  and  of  the  surplus 
of  the  proceeds  of  the  sale,  if  any,  and  such  balance  or  surplus 
may  be  paid  over  to  such  person  or  persons  entitled  thereto, 
within  thirty  days  after  such  sale.  After  the  expiration  of  said 
thirty  days,  such  balance  or  surplus,  if  not  called  for  by  the 
owner,  shall  be  paid  by  such  warehouseman  to  the  county 
treasurer  of  the  county  in  which  such  sale  was  made  and  said 
warehouseman  shall  at  the  same  time  file  with  said  treasurer 
an  affidavit,  in  which  shall  be  stated  the  name  and  place  of 
residence,  so  far  as  the  same  are  known,  of  those  persons  whose 
goods  or  merchandise  have  been  sold,  the  articles  sold  and  the 
prices  at  which  they  were  sold,  the  name  and  residence  of  the 
auctioneer  making  the  sale,  together  with  a  copy  of  the  pub- 
lished notice.     Id.  ch.  127,  sec.  18. 

Statement  to  be  filed  : 

The  county  treasurer  shall  make  an  entry  of  the  amount 
received  by  him  and  the  time  when  received,  and  shall  have 
in  his  office  such  statement  so  delivered  to  him  by  said 
warehouseman.     Id.  ch.  127,  sec.  19. 

When  owner  may  recover : 

If  the  owner  of  the  property  sold,  or  his  legal  representatives, 
shall  at  any  time  within  six  years  after  such  money  is  deposited 
in  the  county  treasury,  furnish  satisfactory  evidence  to  the 
treasurer  of  the  ownership  of  such  property,  he  shall  receive 
from  such  treasurer  the  amount  so  deposited  with  him.  Id. 
ch.  127,  sec.  20. 

Amount  to  be  deposited  : 

If  the  amount  so  deposited  with  any  county  treasurer  is  not 
claimed  by  the  owner  thereof,  or  his  legal  representatives,  within 
the  said  six  years,  the  same  shall  belong  to  the  county  and  shall 
be  credited  to  the  general  fund  thereof.     /(/.  ch.  127,  sec.  21. 

Perishable  property  may  be  sold  : 

Property  of  a  perishable  kind  and  subject  to  decay  by  keeping, 


MICHIGAN.  859 

consigned  or  left  for  storage  in  the  manner  l)efore  mentioned, 
if  not  taken  away  within  thirty  days  after  il  is  left,  may  Ije  sold 
after  giving  ten  days'  notice  thereof  in  the  manner  above  pro- 
vided, but  the  sale  shall  be  conducted  antl  the  proceeds  of  the 
same  applied  in  the  manner  before  provided  in  this  act:  Pro- 
vided, however,  That  any  property  in  a  state  of  decay,  or  that 
is  manifestly  liable  innnediately  to  become  decayed,  may  be 
summarily  sold  without  notice.  The  owner  of  such  property 
shall  be  liable  to  said  warehouseman,  for  any  excess  of  freight 
and  storage  charges  above  the  amount  realized  from  the  sale  of 
said  property.     Id.   ch.  127,  sec.  22. 

Warehouseman  may  replevy  i^oods  after  delivery  : 

Any  warehouseman  who  has  parted  with  his  possession  to 
stored  property,  through  fraud  or  mistake,  to  any  person  not 
entitled  to  the  possession  of  the  same,  may  after  demand  main- 
tain an  action  of  replevin  for  the  same,  or,  if  the  property  can- 
not be  found,  an  action  of  assumpsit  or  trover  against  the  per- 
son converting  or  removing  it.  In  case  of  replevin,  if  there 
was  no  fraud  in  obtaining  such  possession,  the  plaintiff  sliall 
first  tender  to  the  defendant  the  freight  or  other  proper  charges 
which  may  have  accrued  at  the  time  of  the  demand  of  posses- 
sion.    Id.  ch.  127,  sec.  23. 

When  property  is  taken  by  attachment  Avarehouseman  to 
give  notice  to  owner — Notice  to  be  delivered  personally  or 
by  mail : 

\Mienever  any  goods,  wares,  merchandise  or  other  personal 
property  shall  be  taken  from  the  possession  of  any  warehouse- 
man, by  writ  of  attachment  or  replevin,  or  other  legal  process, 
said  warehouseman  shall  at  once  give  written  or  printed  notice 
thereof  to  the  owner  or  person  named  in  the  warehouse  receipt 
given  for  said  property,  or  in  case  said  warehouseman  shall  have 
received  notice  of  any  transfer  of  said  property,  and  of  the  name 
and  address  of  the  transferee,  he  shall  also  give  to  said  trans- 
feree Uke  notice  of  said  suit.  Said  notice  may  be  delivered 
personally  or  sent  by  registered  mail,  postpaid.  If  such  notice 
shall  be  given  as  aforesaid,  said  warehouseman  shall  not  in  any 
way  be  liable  on  account  of  said  suit  to  said  holder  or  trans- 


360  MICHIGAN    LAWS. 

feree  of  said  property,  or  the  holder  of  any  receipt  or  voucher 
given  for  the  same,  saving  and  reserving  to  such  owner  or  holder 
the  legal  remedies  for  the  recovery  of  the  said  goods,  wares, 
merchandise  and  other  personal  property  from  any  person  un- 
lawfully detaining  the  same,  or  for  damages  against  any  person 
unlawfully  taking  the  same.     Id.  ch.  127,  sec.  24. 

Warehouseman  uot  to  be  responsible  for  damages  caused 
by  fire : 

No  warehouseman  shall  be  held  responsible  for  any  loss  or 
damage  to  property  by  fire  while  in  his  custody,  provided  rea- 
sonable care  and  vigilance  be  exercised  to  protect  and  preserve 
the  same.     Id.  ch.  127,  sec.  25. 

When  owners  may  examine  property : 

All  persons  owning  property,  or  who  may  be  interested  in 
the  same,  stored  in  any  public  warehouse,  at  all  times  during 
ordinary  business  hours,  shall,  on  production  of  the  warehouse 
receipt,  be  at  full  liberty  to  examine  such  property,  and  all 
proper  facilities  shall  be  extended  to  such  person  by  the  ware- 
houseman, his  agents  and  employees  for  such  examination.  Id. 
ch.  127,  sec.  26. 

Warehouse  companies — Authority  to  incorporate  : 

The  People  of  the  state  of  Michigan  enact:  That  any  five  or 
more  persons,  residents  of  this  state,  may  associate  themselves 
together  as  a  body  corporate,  for  the  purpose  of  constructing, 
owning  and  controlling  warehouses  for  the  storage  of  grain  and 
other  commondities.     Id.  ch.  183,  sec.  1. 

Conditions — Affidavits  required  ; 

Such  persons  shall,  under  their  hands,  and  seals,  make  and 
subscribe  to  a  certificate,  which  shall  specify:  First,  the  name 
and  the  business  of  said  association ;  second,  the  amount  of  the 
capital  stock  thereof,  and  the  amount  of  cash  capital  actually 
paid  in;  third,  the  number  of  shares  into  which  said  capital 
stock  shall  be  divided,  and  it  is  hereby  provided  that  such  shares 
shall  not  be  less  than  twenty-five  dollars  each ;  fourth,  the  names 
of  the  stockholders,  their  respective  residences,  and  the  num- 
bers of    shares  held   by  each  person  ;    fifth,  the  amount  of  all 


MICHIGAN.  361 

property,  real  and  personal,  that  may  be  hekl  by  such  cor- 
poration; sixth,  the  term  of  the  existence  of  said  corporation, 
not  to  exceed  thirty  years. 

Which  certificate  shall  be  verified  by  th(>  affidavits  of  the 
persons  subscribing  the  same,  and  be  acknowledged  before  some 
officer  authorized  to  take  the  acknowledgm(>nt  of  dt^eds,  and 
shall  be  recorded  in  the  office  of  the  secretary  of  state,  and  in 
the  office  of  the  clerk  of  the  county  in  which  such  corporation  is 
located.     Id.  ch.  183,  sec.  2. 

Body  corporate — Powers,  etc. — Limit  of  property — Pro- 
viso: 

Upon  compliance  by  such  persons  with  the  provisions  of  the 
preceding  section,  such  association  shall  be  and  is  hereby  de- 
clared a  body  corporate,  emjiowered  to  hold  and  possess  so  nmch 
real  and  personal  estate  that  may  be  purchased  by  it,  or  that 
may  be  given,  granted,  or  devised  to  it  as  a  corporation,  in  ac- 
cordance with  the  provisions  of  law  at  the  time  such  gift,  grant 
or  devise  shall  take  effect,  as  may  be  necessary  for  the  use  and 
occupation  of  said  corporation  for  the  purposes  of  its  business, 
not  to  exceed  (exceeding)  in  value  two  million  dollars:  Pro- 
vided, That  all  the  property  of  such  corporation  shall  be  subject 
to  taxation,  and  shall  be  used  for  no  other  purpose  than  the 
legitimate  business  of  said  corporation  as  hereinafter  stated. 
Id.  ch.  183,  sec.  3. 

Right  to  })uil(l,  and  receive  grain,  etc.,  on  storage : 

Any  corporation  formed  under  the  jjrovisions  of  this  act  is 
hereby  authorized  to  erect  a  warehouse  or  warehouses,  on  any 
portion  of  the  real  estate  that  may  be  owned  or  acquired  by 
it  in  accordance  with  the  preceding  section,  and  to  receive  for 
storage  therein  grain  and  other  commodities,  to  fix  the  price 
for  such  storage,  and  to  make  all  necessary  rules  and  regulations 
for  the  management  of  its  said  business.     Id.  ch.  183,  sec.  4. 

Manner  of  calling  the  first  meeting — Election  of  oflHeers — 
Proviso : 

When  any  corporation  shall  be  formed  under  this  act,  any 
three  of  those  associated  mtiy  call  the  first  meeting  of  the  cor- 
poration, at  such  time  and  i)lace  as  they  may  apj^oint,  by  giving 


362  MICH  Ki  AN    LAWS. 

notice  thereof,  by  i)ublisliing  the  same  two  or  more  times  in 
some  newspaper  printed  in  the  county  in  which  the  place  of 
business  of  said  corporation  is  located,  at  least  fifteen  days  be- 
fore the  time  appointed  for  such  meeting;  at  which  meeting,  or 
at  any  adjourned  meeting  thereof,  the  stockholders  of  said 
corporation  may  elect  such  officers  of  said  corporation  as  they 
shall  deem  necessary  for  the  proj^er  management  of  the  prop- 
erty and  business  of  said  corporation,  and  may  also  make  all 
necessary  by-laws  and  regulations  for  the  proper  management 
of  their  affairs:  Provided,  That  said  by-laws  and  regulations 
shall  be  in  conformity  with  the  provisions  of  chapter  seventy- 
three  of  the  compiled  laws  relative  to  corporations.  Id.  ch.  183, 
sec.  5. 

Other  provisions  : 

All  corporations  formed  under  this  act  shall  be  subject  to  the 
general  provisions  of  chapter  seventj^-three  of  the  compiled 
laws,  in  all  matters  not  herein  enumerated  and  specified  so  far 
as  the  same  may  be  applicable  thereto.     Id.  ch.  183,  sec.  6. 

Disposition  of  nnclainied  property — Description  .and  date 
of  reception  of  property  to  be  entered  in  certain  cases  : 

Whenever  any  personal  proj^erty  shall  be  consigned  to,  or 
deposited  with  any  forwarding  merchant,  wharf  keeper,  ware- 
house keeper,  tavern  keeper,  or  the  keeper  of  any  depot  for  the 
reception  and  storage  of  trunks,  baggage,  and  other  personal 
property,  such  consignee  or  bailee  shall  immediately  cause  to 
be  entered  in  a  book  to  be  provided  and  kept  by  him  for  that 
purpose,  a  description  of  such  property,  with  the  date  of  the 
reception  thereof.     Id.  ch.  148,  sec.  1. 

When  notice  to  be  i?iven  to  owner  by  letter  : 

If  such  property  shall  not  have  been  left  with  such  consignee 
or  bailee,  for  the  purpose  of  being  forwarded  or  otherwise  dis- 
posed of  according  to  directions  received  b}^  such  consignee  or 
bailee,  at  or  before  the  time  of  the  reception  thereof,  and  the 
name  and  residence  of  the  owner  of  such  property  be  known  or 
ascertained,  the  person  having  such  property  in  his  custod}' 
shall  innnediately  notify  such  owner  by  letter,  to  be  directed 


MKIIICAN.  863 

to  him,  and  deposited  in  a  [)c)st-ofiict',  to    be  transmitted  by 
mail,  of  the  reception  of  such  property.     Id.  ch.  148,  sec.  2. 

Notice  when  and  how  to  be  imUlished  : 

In  case  any  such  property  shall  remain  unclaimed  for  three 
months  after  its  reception  as  aforesaid,  the  person  iiaving  pos- 
session thereof  shall  cause  a  notice  to  be  published  once  in  each 
week  for  four  successive  weeks  in  a  newspaper  publishetl  in  the 
same  county,  if  tiiei'e  be  one,  and  if  not,  then  in  souk^  paper 
published  at  the  seat  of  government,  describing  such  projjerty, 
and  si)ecifying  the  time  when  it  was  so  received,  and  stating 
that  unless  such  property  shall  be  claimed  within  three  months 
from  the  first  publication  of  such  notice,  and  the  lawful  charges 
thereon  paid,  the  same  will  be  sold  according  to  the  statute  in 
such  case  made  and  provided.     Id.  ch.  148,  sec.  3. 

Proceedings  if  the  property  remain  nnclainied  : 

In  case  the  owner  or  person  entitled  to  such  property  shall 
not,  within  three  months  after  the  first  publication  of  such 
notice,  claim  such  property  and  pay  the  lawful  charges  thereon, 
including  the  expense  '.)f  such  publication,  the  person  having 
possession  of  the  pro{)erty,  his  agent  or  attorney,  may  make  and 
deliver  to  any  justice  of  the  peace  of  the  same  county,  an  affi- 
davit, setting  forth  a  description  of  the  property  remaining  un- 
claimed, the  time  of  its  reception,  the  publication  of  the  notice, 
and  whether  the  owner  of  such  property  be  known  oi-  unknown. 
Id.  ch.  148,  sec.  4. 

Inventory  and  order  for  sale  when  to  be  made  by  justice  : 

Upon  the  delivery  to  him  of  such  affidavit,  the  justice  shall 
cause  such  property  to  be  opened  and  examined  in  his  jiresence, 
and  a  true  inventory  thereof  to  be  made,  and  shall  make  and 
annex  to  such  inventory  an  order  under  his  hand,  that  the 
property  therein  described  be  sold  by  any  constal)le  of  the  city 
or  township  where  the  same  shall  be,  at  public  auction,  upon 
due  notice.     Id.  ch.  148,  sec.  5. 

Constable  to  give  notice  and  sell  property  : 

It  shall  be  the  duty  of  the  constable  receiving  such  inventor}' 
and  order,  to  give  ten  days'  notice  of  the  sale,  by  posting  up 


364  MICHIGAN   LAWS. 

written  notices  thereof  in  three  pubhc  places  in  the  city  or 
township,  and  to  sell  such  property  at  public  auction  for  the 
highest  price  he  can  obtain  therefor.     Id.  ch.  148,  sec.  6. 

Return  of  constable : 

Upon  completing  the  sale,  the  constable  making  the  same 
shall  indorse  upon  the  order  aforesaid  a  return  of  his  proceed- 
ings upon  such  order,  and  deliver  the  same  to  such  justice, 
together  with  the  inventory,  and  the  proceeds  of  the  sale,  after 
deducting  his  fees,  which  shall  be  the  same  as  upon  an  execu- 
tion.    Id.  ch.  148,  sec.  7. 

Disposition  of  proceeds,  etc. : 

From  the  proceeds  of  such  sale,  the  justice  shall  pay  the 
charges  and  expenses  legally  incurred  in  respect  to  such  property, 
or  a  ratable  proportion  to  each  claimant,  if  there  be  not  suffi- 
cient for  the  payment  of  the  whole;  and  such  justice  shall  as- 
certain and  determine  the  amount  of  such  charges  in  a  summary 
manner,  and  shall  be  entitled  to  one  dollar  for  each  day's  services 
rendered  by  him  in  such  proceedings.     Id.  ch.  148,  sec.  8. 

Inventory,  etc.,  to  be  delivered  to  county  treasurer : 

Such  justice  shall  deliver  to  the  treasurer  of  the  county  in 
which  the  property  was  sold,  the  affidavit,  inventory  and  order 
of  sale,  and  return  herein  before  mentioned,  together  with  a 
statement  of  the  charges  and  expenses  incurred  in  respect  to 
such  property,  as  ascertained  and  paid  by  him,  with  a  statement 
of  his  own  fees,  and  shall  at  the  same  time  pay  over  to  such 
treasurer  any  balance  of  the  proceeds  of  the  sale,  remaining 
after  payment  of  such  charges,  expenses  and  fees.  Id.  ch.  148, 
sec.  9. 

Entry,  etc.,  to  be  made  by  treasurer : 

The  treasurer  shall  file  in  his  office,  and  safely  keep  all  the 
papers  so  delivered  to  him,  and  make  a  proper  entry  of  the  pay- 
ment to  him  of  any  moneys  arising  from  such  sale,  in  the  books 
of  his  office.     Id.  ch.  148,  sec.  10. 

When  owner  may  receive  amount  deposited  with  treasurer : 

If  the  owner  of  the  property  sold,  or  his  legal  representatives 


MICHKJAN.  8H5 

shall,  at  any  time  within  five  years  aftor  such  moneys  shall  he 
deposited  in  the  county  treasury,  furnish  satisfactory  evidence 
to  the  treasurer  of  the  owncM-ship  of  sueli  jirojierty,  he  or  they 
shall  be  entitled  to  receive  from  such  treasurer  the  amount  so 
deposited  with  him.     Id.  ch.  148,  sec.  11. 

If  aiuonnt  not  paid  to  owner,  to  be  pjiid  into  state  treas- 
ury : 

If  the  amount  so  deposited  with  any  county  treasunM-  shall 
not  be  paid  to  such  owner  or  his  legal  representative's  within 
the  said  five  years,  such  county  treasurer  shall  i)ay  such  amount 
into  the  state  treasury,  to  the  credit  of  the  general  fund.  Id. 
ch.  148,  sec.  12. 

Owners,  etc.,  of  factories,  warehouses,  etc.,  to  provide  fire 
escapes : 

It  shall  be  the  duty  of  the  owner,  proprietor,  or  lessee  of  any 
building,  factory,  mill,  warehouse,  or  workshop,  more  than  two 
stories  in  height,  where  male  or  female  help  is  employed  above 
the  second  story  in  such  building,  to  })rovide  suitable  laddei's, 
or  such  other  fire  escapes  as  may  be  deemed  necessary,  for  the 
escape  of  such  help  or  other  persons  occupying  such  building, 
in  cases  of  fire,  as  provided  in  section  four  of  this  act.  Id. 
sec.  5534. 

Shops,  etc.,  not  to  be  kept  open  on  the  first  day  of  the 
week,  etc.  : 

No  person  shall  keep  open  his  shop,  warehouse,  or  work- 
house, or  shall  do  any  manner  of  labor,  business,  or  work,  or 
be  present  at  any  dancing,  or  at  any  public  diversion,  show,  or 
entertainment,  or  take  any  part  in  any  sport,  any  game,  or  )ilay 
on  the  first  day  of  the  week.  The  foregoing  provisions  shall  not 
apply  to  works  of  necessity  and  charity,  nor  to  the  making  of  mu- 
tual promises  of  marriage,  nor  the  solemnization  of  marriages. 
And  every  person  so  ofTending  shall  be  punished  by  a  fine  not  ex- 
ceeding ten  dollars  for  each  ofTense.     Id.  ch.  154,  sec.  1. 

Burning  in  the  ni^ht  a  nieetinghonse,  etc.  : 

Every  person  who  shall  willfully  and  maliciously  burn  in  the 
night-thne,    any    meetinghouse,    church,    courthouse,    college, 


366  MICHIGAN    LAWS. 

academy,  jail,  railroad  depot,  or  other  building  erected  for 
public  use;  or  any  banking  house,  warehouse,  store,  manu- 
factory, or  mill  of  another,  being  with  the  property  therein 
contained,  of  the  value  of  one  thousand  dollars;  or  any  barn, 
stable,  shop  or  office  of  another,  within  the  curtilage  of  any 
dwelling  house;  or  any  other  building  by  the  burning  whereof 
any  building  mentioned  in  this  section  shall  be  burnt  in  the 
night-time,  shall  l)e  punished  by  imprisonment  in  the  state 
prison  for  any  term  of  years.     Id.  ch.  320,  sec.  3. 

Biiriiiug  of  the  same  in  the  day- time  : 

Every  person  who  shall  willfully  and  maliciously  burn,  in  the 
day-time,  any  building  mentioned  in  the  preceding  section,  the 
punishment  for  which,  if  burnt  in  the  night-time,  would  be  im- 
prisonment in  the  state  prison  for  any  term  of  years,  shall  be 
])unishod  by  imprisonment  in  the  state  prison  not  more  than 
ten  years.     Id.  ch.  320,  sec.  4. 

Burning  certain  buildings,  etc.,  in  night  or  day  time  : 

Every  person  who  shall  willfully  and  maliciously  burn,  either 
in  the  night-time  or  in  the  day-time,  any  banking  house,  ware- 
house, store,  manufactory,  mill,  barn,  stable,  shop,  office,  out- 
house, or  other  building  whatsoever  of  another,  other  than  is 
mentioned  in  the  third  section  of  this  chapter,  or  any  bridge, 
lock,  dam  or  flume,  or  any  ship,  boat,  or  vessel  of  another,  lying 
within  the  body  of  any  county,  shall  be  punished  by  imprison- 
ment in  the  state  prison  not  more  than  ten  years.  Id.  ch.  320, 
sec.  5. 

Penalty  for  setting  fire  to  buildings : 

Every  person  who  shall  set  fire  to  any  building  mentioned  in 
the  preceding  sections  or  to  any  other  material  with  intent  to 
cause  any  such  building  to  be  burned,  or  shall,  by  any  other 
means  or  by  soliciting  any  othei"  person,  attempt  to  cause  any 
such  building  to  be  burned,  whether  such  building  is  owner  or 
occupied  by  himself  or  herself  or  by  another,  shall  be  punished 
by  imprisonment  in  the  state  prison  not  more  than  fifteen  years, 
or  in  the  county  jail  not  more  than  one  year,  or  by  a  fine  not 
exceeding  one  thousand  dollars.     Id.  ch.  320,  sec.  6. 


MiCfllGAN.  367 

Penalty  for  breaking  into,  etc.,  office,  wareliouse,  etc.,  in 
niglit-time  : 

Every  person  who  shall  break  and  enter,  in  the  night-time, 
any  office,  shop,  store,  salo(jn,  railroad  depot,  warehouse,  mill, 
schoolhouse  or  factory,  not  adjoiiiiiif;-  to  or  ()ccui)i('d  witli  a 
dw^elling  house,  or  any  railroad  car,  shop,  boat  or  vessel  within 
the  body  of  any  county,  with  intent  to  connnit  the;  crime  of 
murder,  rape,  robbery,  or  any  other  felony  or  larceny,  shall  be 
punished  by  imprisonment  in  the  state  prison  not  more  than 
fifteen  years.     Id.  ch.  320,  sec.  12. 

Penalty  for  entering  dwellings,  etc.,  in  the  night,  without 
breaking,  in  day-time,  etc. : 

Every  person  who  shall  enter  in  the  night-time  without  break- 
ing, or  shall  break  and  enter  in  the  day-time,  any  dwelling 
house,  or  any  outhouse  thereto  adjoining,  kept  therewith,  or 
any  office,  shop,  store,  saloon,  restaurant,  barn,  granary,  rail- 
road car,  railroad  depot,  warehouse,  mill  or  factory,  or  any  ship, 
boat,  or  vessel,  within  the  body  of  any  county,  with  intent  to 
commit  the  crime  of  nmrder,  rape,  robbery,  or  any  other  felony 
or  larceny,  the  owner  of  any  other  person  lawfully  therein  being 
put  in  fear,  shall  be  punished  by  imprisonment  in  the  state 
prison  not  more  than  ten  years.     Id.  ch.  320,  sec.  13. 

Penalty  for  entering  dwelling,  etc.,  with  intent  to  commit 
crime,  etc.,  i)roviso  as  to  penalty  for  nnlawf nl  entry  in  freight 
car  to  obtain  carriage  : 

Every  person  who  shall  enter  any  dwelling  house  in  the  night- 
time, without  breaking,  or  shall  break  or  enter  in  the  day-time, 
any  dwelling  house,  or  any  outhouse  thereto  adjoining  and  oc- 
cupied therewith,  or  any  church,  office,  shop,  store,  saloon, 
restaurant,  barn,  granary,  railroad  car,  railroad  depot,  ware- 
house, mill,  schoolhouse  or  factory,  or  any  ship,  boat  or  vessel 
lying  within  the  body  of  any  county,  with  intent  to  commit  the 
crime  of  murder,  rape,  robbery  or  any  other  felony  or  larceny, 
shall  be  punished  by  imprisonment  in  the  state  prison  not  more 
than  five  years,  or  by  a  fine  not  exceeding  five  hundred  dollars 
and  by  imprisonment  in  the  county  jail  not  more  than  one  year; 
Provided,  That  every  person  who  shall  unlawfully  break  into  any 
railroad  freight  car,  or  unlawfully  enter  the  same  without  break- 


368  MICHIGA>i    LAWS. 

ing,  with  intent  to  obtain  carriage  in  such  car,  the  same  being 
a  part  of  a  freight  train,  shall  be  punished  by  a  fine  not  exceed- 
ing fifty  dollars,  or  imijrisonnient  in  the  county  jail  not  more 
than  sixty  days,  or  both  such  tine  and  imprisonment.  Id. 
ch.  320,  sec.  14. 

Stealing  iu  day-time  in  dwelling,  etc.,  or  breaking  in  in 
the  night  and  stealing  in  public  building : 

Every  person  who  shall  steal  in  the  day-time,  in  any  dwelling 
house,  office,  store,  shop,  warehouse,  mill,  factory,  ship,  boat 
or  vessel,  or  shall  break  and  enter  in  the  night-time,  any  meeting- 
house, church,  courthouse,  college,  academy,  or  other  building 
erected  for  public  use,  and  steal  therein,  shall  be  punished  by 
imprisonment  in  the  state  prison  not  more  than  five  years,  or 
by  fine  not  exceeding  five  hundred  dollai's,  and  imj^risonment 
in  the  county  jail  not  more  than  one  year.     Id.  ch.  320,  sec.  15. 

Embezzlement  of  goods,  etc.,  which  may  be  the  subject  of 
larceny — Deemed  larceny  : 

If  any  person  to  whom  any  money,  goods,  or  other  property 
which  may  be  the  subject  of  larceny,  shall  have  been  delivered, 
shall  embezzle  or  fraudulently  convert  to  his  own  use,  or  shall 
secrete  with  the  intent  to  embezzle,  or  fraudulently  use  such 
goods,  money,  or  other  property,  or  any  part  thereof,  he  shall 
be  deemed  by  so  doing  to  have  committed  the  crime  of  larceny. 
Id.  ch.  320,  sec.  34. 

Above  statute  construed — Existence  of  lien,  will  not  justify 
conversion — Hotel  keeper — Actual  conversion  and  intention 
essential : 

The  fact  that  one  was  a  guest  at  a  hotel  and  that  the  pro- 
prietor thereof  would  have  a  lien  upon  the  baggage  of  his  guest 
for  the  amount  of  charges  of  the  proprietor  for  board  gives  to 
the  latter  no  authority  to  dispose  of  the  property  as  his  own. 
The  contention  that  the  hotel  ko(>per  had  a  lien  on  the  baggage 
and  that  therefore  he  could  not  be  guilty  of  larceny  in  relation 
thereto  cannot  be  sustained  under  the  above  statute.  An  in- 
struction to  the  jury  to  the  following  effect  held  to  be  correct, 
that  in  order  to  find  a  conversion  they  must  find  an  actual  con- 
version by  the  proprietor  to  his  own  use  and  also  an  intent 


MICHIGAN.  30U 

existing  at  the  time  of  such  act  of  conversion,  to  tloprivc  Uk; 
owner  of  his  property  therein  and  to  use  it  himself;  furtlicr, 
that  if  the  proprietor  acting  under  tlie  behef  that  ho  luid  a  lien 
on  the  goods  for  his  charges  and  that  therefore  he  had  a  light 
to  dispose  of  the  same  and  (Ud  so  under  this  belief  that  this 
action  on  the  part  of  the  proprietor  would  negative  an  intent  to 
deprive  the  owner  of  his  goods.     People  v.  Husband,  36  Mch.  306. 

Penalty  for  iiiakiiii^  fnuiduleiit  wareliouse  receipts  : 

If  any  warehouseman  or  forwarding  merchant  or  any  other 
person,  or  the  agent  or  clerk  of  any  warehouseman  or  forward- 
ing merchant  or  other  person,  shall  knowingly  execute  and 
deliver  to  any  ])erson  a  receipt  or  certificate  purporting  to  be 
for  flour,  wheat,  pot  or  pearl  ashes,  or  any  grain,  produce  or 
thing  of  value,  as  being  at  the  time  of  executing  and  delivering 
such  receipt  in  possession  of  such  warehouseman  or  forwarding 
merchant,  or  other  person,  or  in  store  for  the  person  or  persons, 
co-partnership,  or  firm  named  in  any  such  receipt  or  certificate, 
without  l)eing  at  the  time  of  executing  and  delivering  such  re- 
ceipt in  the  actual  possession  of  such  flour,  wheat,  pot  or  pearl 
ashes,  or  any  grain,  produce,  or  thing  of  value,  as  expressed  in 
such  certificate  or  receipt,  such  warehouseman,  forwarding 
merchant,  or  other  person,  agent  or  clerk  so  executing  and  de- 
livering any  such  receipt,  or  certificate  shall  be  deemed  guilty 
of  a  felony,  and  on  conviction  thereof  shall  be  punished  by  a 
fine  not  exceeding  two  thousand  dollars,  or  imprisonment  in  the 
state  prison  not  exceeding  three  years,  or  by  both  such  fine  and 
imprisonment,  in  the  discretion  of  the  court;  and  sending  or 
forwarding  to  a  person  who  shall  be  duly  entitled  or  authorized 
to  receive  the  same,  by  the  public  mails,  or  through  the  gov- 
ernment post-office,  or  by  the  hands  of  any  person  or  persons, 
any  such  receipt  or  certificate  as  aforesaid,  shall  be  deemed  to 
be  a  good  and  lawful  delivery  thereof,  within  the  meaning  of 
tnis  section.     Compiled  Laws,  Mich.  1897,  ch.  320,  sec.  35. 

Fraudulent  disijosition  of  property  by  agents,  etc. : 

Whenever  money,  or  any  goods,  wares,  merchandise  or  other 
personal  property,  shall  be  delivered,  committed    or  intrusted 
to,  or  put  in  charge  of,  any  person  or  persons  as  agent  or  agents 
24 


370  MICHIGAN    LAWS. 

with  written  instructions,  or  upon  any  written  agreement  signed 
by  the  party  so  instructed  as  agent,  or  such  written  instructions 
shall  be  delivered,  or  such  written  agreement  shall  be  made,  at 
any  time  after  delivery  to  such  agent  or  agents,  of  any  money 
or  goods,  wares,  merchandise,  or  other  personal  property,  which 
instructions  or  agreements  shall  express  the  appropriation,  pur- 
pose or  use  to  which  such  money  shall  be  applied,  or  the  terms, 
mode  or  manner  of  the  application  or  employment  of  such  money, 
or  which  shall  express  or  direct  the  disposition  or  use  to  be  made 
by  such  agent,  of  tmy  goods,  wares,  merchandise,  or  other  per- 
sonal property,  so  delivered  or  intrusted  to  such  agent;  if  the 
person  or  persons  to  whom  any  such  money  or  goods,  wares  or 
merchandise  or  other  personal  property  shall  be  so  delivered, 
committed  or  intrusted,  shall  jjurposely  and  intentionally  apply, 
appropriate,  dispose  of,  or  use  any  such  money  or  goods,  wares, 
merchandise  or  other  personal  property  in  any  other  way  or 
manner,  or  for  any  other  purpose,  use  or  intent,  than  such  as 
shall  be  expressed  in  such  written  instrument  or  agreement 
touching  the  same,  the  person  or  persons  so  doing  shall  be 
deemed  guilty  of  felony,  and  on  conviction  thereof  before  a 
competent  tribunal,  shall  be  subject  to  a  fine  not  exceeding 
two  thousand  dollars,  or  imprisonment  in  the  state  prison  for  a 
term  not  exceeding  three  years,  or  by  both  such  fine  and  im- 
prisonment, in  the  discretion  of  the  court.     Id.  ch.  320,  sec.  36. 

Penalty  for  einbezzlemeiit  of  property  receipted  for : 

If  any  warehouseman  or  forwarder,  or  other  person  who  shall 
have  issued  a  receipt  or  certificate  for  ])roi3erty,  as  recited  in 
the  thirty-fifth  section  of  this  chapter,  or  shall  receive  property 
on  deposit  or  for  sale  on  a  specific  contract  or  understanding, 
and  shall,  after  issuing  said  receipt  or  certificate,  or  receiving 
such  property,  embezzle,  dispose  of,  or  convert  to  his  own  use, 
such  property  or  the  moneys  received  on  the  sale  of  such  prop- 
erty, contrary  to  such  receipt  or  certificate,  or  to  the  previous 
contract  or  understanding,  he  shall  be  deemed  guilty  of  a  felony 
and  on  conviction  thereof  shall  be  punished  by  imprisonment 
in  the  state  prison  not  more  than  five  years,  or  by  a  fine  not 
exceeding  five  thousand  dollars,  or  by  imprisonment  in  the 
county  jail  not  more  than  one  year.     Id.  ch,  320,  sec.  37. 


MICHIGAN.  871 


DECISIONS  AFFECTING  WAREHOUSEMEN. 

B. 

Bailment  and  sale — Facts  constituting  bailment — Trover — Evi- 
dence as  to  usage. 

An  action  of  trover  was  brought  against  the  defendant,  a 
warehouseman,  for  the  recovery  of  the  value  of  certain  wheat 
stored  with  him.  The  defendant  had  deUvered  to  the  phiintiff 
a  large  quantity  of  wheat  and  this  action  was  brought  for  the 
recovery  of  a  quantity  still  due  the  plaintiff,  which  allegation 
was  denied  by  the  defendant.  Evidence  was  received  of  the 
usage  whereby  wheat,  so  stored  on  similar  receipts,  was  mixed 
with  other  wheat  of  like  kind  and  quality  and  that  a  delivery 
of  the  same  wheat  is  never  expected,  but  only  of  similar  wheat 
of  the  same  quality.  In  the  lower  court,  upon  the  above  state 
of  facts,  judgment  was  rendered  for  the  defendant  on  the  ground 
that  the  plaintiff  should  have  sought  his  remedy  in  assumpsit, 
and  not  in  trover,  the  transaction  not  creating  a  bailmc^nt  but 
amounting  to  a  sale.  It  was  held,  on  appeal,  that  the  question 
of  the  admissibility  of  the  evidence  showing  the  usage  as  to  the 
mixture  of  grain  was  a  very  doubtful  one,  but  granting  that 
such  usage  was  known  to  the  parties  and  was  incorporated  in 
their  agreement,  that  the  transaction  nevertheless  constituted 
a  bailment  and  not  a  sale.     Envin  v.  Clark,  13  Mich.  10. 

Same — Same — Intention  of  parties  in  receipt  construed — Usage. 

The  plaintiff  delivered   wheat  to  the  defendants,   merchant 

millers,  and  received  a  receipt  therefor  in  the  following  terms: 

"No.  96  820  bus.  Crescent  Mills. 

"Grand    Rapids,    Mich.    March    26,    1S7S. 

"  Received  of  William  B.  Ledyard  by  L.  Byrne,  820  bushels 

number  One  wheat  at  owner's  risk  from  elements,  at  10  cents 

less  Detroit  quotations  for  same  grade  when  sold  to  us.     Stored 

for days. 

"HiBBARD    &   Graff." 

The  wheat  was  all  stored,  with  plaintiff's  knowI(>dge,  in  bins 
from  which  the  defendants  drew  from  day  to  day  for  purpo.ses 


372  MICH  Ki  AN    DECISIONS. 

of  their  business  and  nianufact  ure.  No  storage  was  ever  charged 
antl  the  deahngs  between  the  parties  remained  entirely  unsettled 
antl  open  until  the  failure  of  the  defendants.  Plaintiff  then  de- 
manded his  wheat  and  failing  to  obtain  the  same  brought  an 
action  of  replevin  for  the  recovery  thereof.  The  defendants 
undertook  to  show  that  the  plaintiff"  demanded  not  the  wheat 
but  the  price  thereof,  but  on  this  i)oint  the  jury  decided  against 
them.  It  was  contended  in  behalf  of  the  plaintiff  that  the  trans- 
action was  a  bailment  and  that  it  was  at  the  option  of  the  plain- 
tiff to  take  the  value  at  ten  cents  less  than  the  Detroit  quota- 
tions or  to  receive  back  the  wheat  or  an  equal  amount  of  the 
same  kind  and  quantity.  It  was  held  that  the  relations  of  the 
parties  was  to  be  determined  from  the  receipt  and  that  as  long 
as  the  wheat  was  held  by  the  defendants  at  the  risk  of  the  plain- 
tiff" it  was  a  bailment  and  not  a  sale.  That  the  plaintiff  could 
have  converted  the  bailment  into  a  sale  by  notifying  the  de- 
fendants of  his  election  to  receive  the  price  fixed  according  to 
the  terms  of  the  contract.  Further,  that  if  the  receipts  were 
issued  by  the  defendants  as  warehousemen  they  stood  for  the 
goods  for  which  they  had  been  issued  and  the  fair  presumption 
was  that  the  grain,  or  its  equal  in  kind  and  quantity,  was  to  be 
kept  in  the  warehouse  to  meet  the  receipt  on  presentation,  and 
that  this  presumption  could  only  be  overcome  by  some  act 
unequivocal  in  its  nature.  Further,  that  usage  can  never  vary 
the  written  stipulations  of  parties,  though  it  may  aid  in  the  ex- 
planation of  their  terms  and  perhaps  add  incidents  in  respect  to 
which  they  are  silent.     Ledyard  v.  Hibbard  et  al,  48  Mich.  421. 

H. 

Lien  for  charges— By  statute  extends  to  all  valid  claims  for 
storage,  etc.,  against  the  order. 

Under  sec.  2,  chap.  127,  Laws  of  1897,  it  was  held  that  a  ware- 
houseman has  a  valid  lien  for  all  claims  which  he  may  have 
against  the  owner  of  property  deposited  with  him  for  storage 
charges  and  for  all  moneys  advanced  by  him  for  cartage,  labor, 
insurance,  weighing,  coopering  and  other  necessary  expenses  to 
or  on  such  property.  That,  therefore,  where  goods  had  been 
removed  from  the  warehouse  and  possession  tlieroof  was  after- 
wards obtained  that  the  lien  for  former  storage  charges  would 


MICHIGAN.  373 

attach  and  that  tlic  warehouseman  could  hold  such  p;oo(l><  for 
storage  charges  and  for  otlici-  advances  and  charges  mentioned 
in  the  statute.  Kaufman  v.  Leonard  (Wayne  County  Circuit 
Court,  May,  1903,  not  yet  reported)  following  Stiliman  v.  Ki?n- 
herly,  121  N.  Y.  393,  aff'd  53  Hun,  531. 

M. 

Pledge — Warehouse    receipt — Issued    against    ivarehouseman' s 

oxen  goods. 

The  defendant  warehouseman  issued  to  the  plaintiff  national 
bank  as  security  for  the  payment  of  a  note,  a  warehouse  receipt 
for  a  large;  (|uantity  of  wheat.  In  this  rec(ni)t  it  was  stated 
that  the  defendant  held  to  the  account  of  the  plaintiff  wheat 
represented  thereby,  to  be  delivered  in  the  wheat  or  its  equiva- 
lent in  floui"  upon  the  return  of  the  receipt  properly  indorsed. 
It  further  appeared  that  at  the  date  of  this  transaction  the 
defendants  were  not  only  buying,  selling,  storing  in  their  factory 
and  shipping  wheat  on  their  own  account,  but  were  also  re- 
ceiving into  their  mills  wheat  to  be  stored  for  others  for  which 
they  issued  the  customary  warehouse  receipt.  The  court  in- 
structed the  jury  that  the  receipt  issued  by  the  defendant  to 
the  plaintiff  constituted  a  valid  pledge  in  the  nature  of  a  mort- 
gage of  the  property  described  therein  as  security  for  the  note 
to  which  it  referred.  Under  these  facts  the  jury  found  that 
the  defendants  were  the  general  owners  of  the  wheat  replevied 
and  that  the  plaintiff  had  a  special  propei'ty  therein  to  the 
amount  of  the  unpaid  loan.  It  was  held  on  appeal  that  this 
instruction  was  correct,  that  the  contention  made  in  behalf  of 
the  defendants  that  there  was  not  a  valid  pledge  made  of  the 
wheat  on  the  ground  that  the  plaintiff  never  had  ]:)OSsession 
thereof,  which  was  essential  to  a  pledge,  could  not  be  sustained; 
that  the  warehouse  receipt  passed  the  title  to  the  wheat  rej)re- 
sented  thereby  and  that  there  was  a.  valid  pledge  thereof.  The 
court  further  held  that  the  mere  fact  that  the  receipt  in  ques- 
tion mentioned  both  number  one  and  number  two  wheat  did 
not  constitute  an  indefiniteness  which  would  vitiate  the  pledge 
although  the  quantity  of  each  kind  of  wheat  was  not  mentioned 
in  the  receipt.  And  that  in  the  absence  of  any  specification  of 
the  quantity  of  each  kind  that  was  to  be  held,  the  legal  construe- 


374  MICHIGAN   DECISIONS. 

tion  would  entitle  the  pledgee  to  an  ('(jual  aiiiouut  of  each  kind 
if  it  remained  unmanufactured.  Merchants'  &  Mfgrs.'  Bank 
of  Detroit  v.  Hihhard  et  al,  4S  Mich.  118. 

<\' 

Elevator  receipts — Valid  tender  by. 

An  offer  to  deliver  grain  represented  by  elevator  receipts, 
where  title  is  in  such  receipts,  held  to  be  valid  tender  and  that 
the  delivery  of  such  receipts  would  be  a  delivery  of  the  grain 
rei)resented  thereby.     Gregory  ct  al.  y.  Wendell  et  al.,  40  Mich 
432. 

R. 

Bill  of  lading — Indorsement — Effect  of. 

Indorsement  of  a  bill  of  lading  is  no  more  than  an  assignment 
of  the  shipper's  obligation,  and  of  the  property  called  for  by 
the  bill.  It  involves  no  promise  on  the  part  of  the  indorser 
to  do  anything  towards  forwarding  the  property  to  its  destina- 
tion.    Maybee  &  Hasley  v.  Tregent,  47  Mich.  495. 


MINNESOTA.  37i 


CHAPTER  XXIII. 
MINNESOTA. 

LAWS   PERTAINING   TO   WAREHOUSEMEN. 

Consignee  to  keep  record  of  personal  property  : 

Whenever  any  personal  property  is  consigned  to,  or  deposited 
with,  any  forwarding  merchant,  wharf  Iveeper,  warehouse  keeper, 
tavern  keeper,  express  company,  or  the  keeper  of  any  depot  for 
the  reception  and  stoi'age  of  trunks,  baggage,  merchandise,  or 
other  personal  property,  such  consignee  or  bailee  shall  imme- 
diately cause  to  be  entered,  in  a  book  kept  by  him,  a  description 
of  such  property,  with  the  date  of  the  reception  thereof.  G.  S. 
1866,  ch.  19,  sec.  15;  G.  S.  1878,  ch.  19.  sec.  11. 

Property  may  be  sold — When  : 

If  any  such  property  is  not  claimed  and  taken  away  within 
one  year  after  the  time  it  is  so  received,  the  consignee  or  bailee 
may  at  any  time  thereafter  proceed  to  sell  the  same  in  the 
mannei-  provided  in  this  chapter.  G.  S.  1866,  ch.  19,  sec.  17; 
G.  S.  1878,  ch.  19,  sec.  13. 

Notice  of  sale — How  given  : 

Before  any  such  property  is  sold,  if  the  name  and  residence 
of  the  owner  thereof  are  known,  at  least  sixty  days'  notice  of 
such  sale  shall  be  given  him,  either  personally  or  by  mail,  or 
by  leaving  at  his  residence  or  place  of  doing  business;  but  if  the 
name  and  residence  of  the  owner  are  unknown,  the  person  hav- 
ing the  possession  of  such  property  shall  cause  a  notice  to  be 
published,  containing  a  description  of  the  property;  for  the 
space  of  six  weeks  successively,  in  a  newspaper,  if  there  is  one, 
printed  and  published  in  the  same  county;  if  there  is  no  such 
newspaper,  then  said  notice  shall  be  published  in  a  newspaper 
printed  and  published  at  the  capital  of  the  state;  and  the  last 
publication  of  sudi  notice  shall  be  at  least  eighteen  (.lays  pre- 


376  MINNESOTA    LAWS. 

\ioiis  to  the  time  of  sale.     G.  S.  1866,  ch.  19,  sec,  18;  G.  S.  1878, 
ch.  19,  sec.  14. 

Aifidavit  to  be  made  and  delivered  to  justice  : 

If  the  owner  or  person  entitled  to  such  property  does  not  take 
the  same  away,  and  pay  the  charges  thereon  after  sixty  days' 
notice  has  been  given,  the  consignee  or  bailee,  his  agent  or 
attorney,  shall  make  and  deliver  to  a  justice  of  the  peace  of  the 
same  county  an  affidavit  setting  forth  a  description  of  the  prop- 
erty remaining  unclaimed,  the  time  of  its  reception,  the  publica- 
tion of  the  notice,  and  whether  the  owner  of  such  property  is 
known  or  unknown.  G.  S.  1866,  ch.  19,  sec.  19;  G.  S.  1878, 
ch.  19,  sec.  15. 

Justice  to  make  inventory : 

Upon  the  delivery  to  him  of  such  an  affida\dt,  the  justice 
shall  cause  such  property  to  be  opened  and  examined  in  his 
presence,  and  a  true  inventory  thereof  to  be  made,  and  shall 
annex  to  such  inventory  an  order  under  his  hand,  that  the  prop- 
erty therein  described  shall  be  sold  by  any  constable  of  the 
county  at  pubhc  auction.  G.  S.  1866,  ch.  19,  sec.  21 ;  G.  S.  1878, 
ch.  19,  sec.  17. 

Constable  to  give  notice  of  sale  : 

The  constable  receiving  such  inventory  and  order  shall  give 
ten  days'  notice  of  the  sale,  by  posting  u])  written  notices  thereof 
in  three  or  more  places  in  such  county,  and  shall  sell  such  prop- 
erty at  public  auction  to  the  highest  biflder,  in  the  same  manner 
as  provided  by  law  for  sale  under  executions  from  justices' 
court.     G.  S.  1866,  ch.  19,  sec.  21;  G.  S.  1878,  ch.  19,  sec.  17. 

To  made  a  return  to  justice  : 

Upon  completing  the  sale,  the  constable  shall  indorse  upon 
the  order  aforesaid  a  return  of  his  proceedings  thereon,  and  re- 
turn the  same  to  the  justice,  together  with  tlie  inventory,  and 
the  proceedings  of  the  sale  after  deducting  his  fees.  G.  S.  1866, 
ch.  19,  sec.  225;  G.  S.  1878,  ch.  19,  sec.  18. 

Proceeds  of  sale — How  disposed  of  : 

From  the  proceeds  of  sucli  sale,  the  justice  shall  pay  all  legal 


MINNESOTA.  377 

charges  incurrod  in  ivlation  to  such  [)r()porty,  or  a  ratable  pro- 
portion of  each  charge,  if  the  i)rocee(ls  of  said  sale  are  not  siiHi- 
cient  to  pay  all  the  charges,  and  the  balance,  if  any,  he  shall 
immediately  pay  over  to  the  treasurer  of  the  county  in  which 
the  same  is  sold,  and  deliver  a  statement  therewith,  containing 
a  description  of  the  property  sold,  the  gross  amount  of  such  sale, 
and  the  amount  of  costs,  charges  and  expenses  paid  to  each 
person.     G.  S.  1866,  ch.  19,  sec.  23;  G.  S.  1878,  ch.  19,  sec.  19. 

Duty  of  comity  treasurer : 

Tlie  county  treasurer  shall  make  an  entry  of  the  amount  re- 
ceived by  him  and  the  time  when  received,  and  shall  file  in  his 
office  such  statement  so  delivered  to  him  by  the  justice.  G.  S. 
1866,  ch.  19,  sec.  24;  G.  S.  1878,  ch.  19,  sec.  20. 

Money  deposited  to  be  delivered  to  owner  : 

If  the  owner  of  the  property  sold,  or  his  legal  representatives, 
shall,  at  any  time  within  five  years  after  such  money  is  deposited 
in  the  county  treasury,  furnish  satisfactory  evidence  to  the 
treasurer  of  the  ownership  of  such  property,  he  shall  receive 
from  such  treasurer  the  amount  so  deposited  with  him.  G.  S. 
1866,  ch.  19,  sec.  25;  G.  S.  1878,  ch.  19,  sec.  21. 

Unclaimed  money  to  belona:  to  county  : 

If  the  amount  so  deposited  with  any  county  treasurer  is  not 
claimed  by  the  owner  thereof  or  his  legal  representatives  within 
the  said  five  years,  the  same  shall  belong  to  the  county,  and 
may  be  disposed  of  as  the  board  of  commissioners  direct.  G.  S. 
1866,  ch.  19,  sec.  26;  G.  S.  1878,  ch.  19,  sec.  22. 

Perisliable  property — How  sold  : 

Property  of  a  perishable  kind,  and  sui)ject  to  decay  by  keepiftg, 
consigned  or  left  in  tiie  manner  before  mentioned,  if  not  taken 
away  within  thirty  days  after  it  is  left,  may  be  sold  by  giving 
ten  days'  notice  tliereof ;  the  sale  to  be  conducted,  and  the  j)ro- 
ceeds  of  the  same  to  be  applied,  in  the  manner  before  pi'ovided 
in  this  cliapter:  Provided,  That  any  property  in  a  state  of  decay, 
or  that  IS  manifestly  liai)le  immediately  to  become  decayed, 
may  be  sunnnaril}-  sold  by  order  of  the  justice  of  the  peace, 


378  MINNESOTA    LAWS. 

after  inspection  thereof  as  provided  in  section  twenty  of  this 
chapter.     G.  S.  1866,  ch.  19,  sec.  27;  G.  S.  1878,  ch.  19,  sec.  23. 

Fees  of  justice  and  constable  : 

The  fees  allowed  to  any  justice  of  the  peace  under  the  pro- 
visions of  tliis  chapter  shall  be  one  dollar  for  each  days'  service, 
and  to  any  constable  the  same  fees  as  are  allowed  by  law  for  sale 
upon  an  execution,  and  ten  cents  per  folio  for  making  an  in- 
ventory of  property.  G.  S.  1866,  ch.  19,  sec.  28;  G.  S.  1878,  ch. 
19,  sec.  24. 

Unclaimed  baggage,  etc. — Delivery  to  warehouseman : 

When  any  personal  baggage  shall  have  remained,  for  a  period 
of  thirty  days,  in  the  possession  of  any  carrier  of  passengers,  at 
any  station  of  such  carrier  in  this  state,  to  which  it  may  have 
been  carried  in  performance  of  the  contract  of  such  carrier 
relative  thereto,  or  when  any  freight  or  merchandise  shall  have 
remained,  for  a  period  of  sixty  days,  after  notice  given  by  mail 
to  the  consignee  thereof,  in  ]30ssession  of  any  common  carrier, 
at  any  office  or  station  of  such  carrier  within  this  state,  to  which 
such  freight  or  merchandise  may  have  been  consigned,  then 
and  in  that  case  such  carrier,  upon  payment  of  its  just  charges 
for  the  transportation  and  storage  of  the  same,  may  deliver 
such  baggage,  freight  or  merchandise  to  any  warehouseman  or 
storage  companj^  doing  business  in  this  state.  1885,  ch.  202, 
sec.  1 ;  G.  S.  1878,  v.  2,  ch.  19,  sec.  27a. 

Storage  lien : 

Any  warehouseman  or  storage  company  receiving  any  prop- 
erty, as  provided  in  section  one  of  this  act,  shall  provide  suitable 
storage  for  the  same;  and  such  warehouseman  or  storage  com- 
pany shall  have  a  lien  upon  such  property  for  all  charges  paid 
to'  the  carrier  from  which  the  same  was  received,  and  for  all 
reasonable  charges  for  handling,  storage,  insurance,  and  other 
expenses  necessarily  incurred  in  safely  keeping  the  same,  with 
legal  interest  on  all  thereof.  G.  S.  1885.  ch.  202,  sec.  2;  G.  S. 
1878,  V.  2,  ch.  19,  sec.  276. 

Sale — Notice  : 

If  the  owner  of  such  property,  or  his  agent,  does  not  appear 


MINNKSOTA.  879 

and  duly  claim  the  same  within  twelve  months  from  its  receipt 
from  the  carrier,  sucli  warehouseman  or  stoia^e  company  may 
proceed  to  sell  the  same,  at  public  auction,  to  the  highest  bidder. 
A  notice  specifying  the  time  and  place  of  such  sale  shall  be  pub- 
lished at  least  once  in  each  week  for  three  successive  weeks 
prior  to  such  sale,  in  a  newspaper  printed  and  pultHsiied  at 
the  capital  of  tlie  state,  and  also  in  a  newspaper  printed  and 
j)ublished  in  the  county  where  such  sale  is  to  take  |)lace,  if  there 
be  such  newspaper,  and  also  mailing  a  copy  thereof  to  the  owiiei', 
if  his  address  be  known,  and  by  posting  a  coi)y  of  the  same  in 
three  public  places  in  the  town,  city,  or  village  where  the  prop- 
erty is  to  be  sold.  G.  S.  1885,  ch.  202,  sec.  3;  G.  S.  1878,  v. 
2,  ch.  19,  sec.  27r. 

Sale — Proceeds  : 

The  proceeds  of  all  sales  made  under  the  authority  of  this 
act,  or  so  much  thereof  as  may  be  necessary,  shall  be  apj^lied 
to  the  payments  of  all  reasonable  charges  of  such  warehouse- 
man or  storage  company,  and  the  expenses  of  such  sale;  and 
the  surplus,  if  any,  shall  be  immediately  paid  over  to  the  treas- 
urer of  the  county  in  which  the  property  was  sold,  accompanied 
by  a  statement  as  provided  in  section  nineteen  of  chai)ter  nine- 
teen of  General  Statutes  of  one  thousand  eight  hundred  and 
seventy-eight,  which  statement  shall  be  filed  and  surplus  dis- 
posed of  in  all  respects  as  provided  in  sections  twenty,  twenty- 
one  and  twenty-two,  of  said  chapter  nineteen.  1885,  ch.  202, 
sec.  4;  G.  S.  1878,  v.  2,  ch.  19,  sec.  21  d. 

Warehouseman— Bond  : 

Before  any  warehouseman  or  storage  company  shall  be  en- 
titled to  the  benefit  of  the  provisions  of  this  act,  such  warehouse- 
man or  storage  company  shall  execute  a  bond  to  the  state  of 
Minnesota,  with  at  least  two  sureties,  to  be  approved  by  the 
governor  of  the  state,  in  the  sum  of  ten  thousand  dollars,  con- 
ditioned for  the  faithful  performance  of  all  duties  injoined  upon 
such  warehouseman  or  storage  company  under  the  provisions 
of  this  act,  which  bond  shall  be  for  the  use  of  any  party  interested, 
and  shall  be  deposited  in  the  oflPice  of  the  .secretary  of  state. 
1885,  ch.  202,  sec.  5;  G.  S.  1878,  v.  2.  ch.  19,  sec.  27e. 


380  MINNESOTA    LAWS. 

Act  retrospective : 

The  provisions  of  this  act  shall  apply  to  all  property  now 
held  by  any  carrier  in  this  state,  or  which  has  been  heretofore 
delivered  to  any  warehouseman  or  storage  company  in  accord- 
ance with  the  provisions  of  this  act,  as  fully  as  though  this  act 
had  been  in  force  at  the  time  of  the  receipt  of  such  property 
by  such  carrier,  warehouseman,  or  storage  company.  1885, 
ch.  202,  sec.  6;  G.  S.  1878,  v.  2,  ch.  19,  sec.  27/. 

Lieu  of  common  carriers  and  stable  keepers  : 

Any  person  who  is  a  common  carrier,  and  any  person  who  at 
the  request  of  the  owner  or  lawful  ])ossessor  of  any  personal 
property  carries,  conveys  or  transports  the  same  from  one  place 
to  another,  and  any  person  who  safely  keeps  or  stores  any  per- 
sonal property,  and  any  keeper  of  a  livery  or  boarding  stable 
for  horses,  mules,  cattle  or  stock,  and  any  person  who  pastures 
or  keeps  the  same,  at  the  request  of  the  owmer  or  lawful  pos- 
sessor thereof,  shall  have  the  same  lien  for  his  charges  for  carry- 
ing, transporting,  storing,  keeping,  supporting  and  caring  for 
such  property,  and  the  same  right  to  hold  and  retain  possession 
thereof,  and  the  same  power  of  sale  for  the  satisfaction  of  his 
reasonable  charges  and  expenses  upon  the  same  conditions  and 
restrictions  as  provided  in  the  preceding  section.  1889,  ch.  199, 
sec.  2. 

Grain  delivered  for  storaj^e  deemed  a  bailment : 

That  whenever  any  grain  shall  be  delivered  for  storage  to  any 
person,  association  or  corporation,  such  delivery  shall  in  all 
things  be  deemed  and  treated  as  a  bailment,  and  not  as  a  sale, 
of  the  property  so  delivered,  notwithstanding  such  grain  may 
be  mingled  by  such  bailee  with  the  grain  of  other  persons,  and 
notwithstanding  such  grain  may  be  shipped  or  removed  from 
the  warehouse,  elevator,  or  other  place  where  the  same  was 
stored.  And  in  no  case  shall  the  grain  so  stored,  and  which 
such  bailee  may  hereafter  be  required  to  keep  on  hand,  be  liable 
to  seizure  upon  any  process  of  any  court  in  an  action  against 
such  bailee.     1887,  ch.  86,  sec.  1 ;  G.  S.  1878,  ch.  124,  sec.  13. 

Receipt — Contents — Penalty  for  giving  false  receipt : 

Wlienever  any  grain  shall  be  deposited  in  any  warehouse, 


MINNESOTA.  381 

olevator,  or  other  (loi)()sitary  for  storage,  the  bailee;  tliercuf 
shall  issue  and  (leliv(>r  to  the  person  so  storing  the  same,  a  re- 
ceipt or  other  written  instrument,  which  shall,  in  clear  terms, 
state  the  amount,  kind  and  grade  of  the  grain  stored,  the  terms 
of  storage,  and  if  advances  are  made,  the  words  "advance 
made";  which  receipt  shall  he  jyrinta  facie  evidence  that  the 
holder  thereof  has  in  store  with  the  party  issuing  such  recei])t, 
the  amount  of  grain  of  the  kind  and  gratle  m(;ntioned  in  such 
receipt;  and  any  warehouseman,  proprietor  of  an  elevator,  or 
bailee,  who  shall  issue  any  receipt  or  other  written  instrument 
for  any  grain  received  for  storage,  which  shidl  be  false  in  any  of 
its  statements,  shall  be  guilty  of  a  misdemeanor,  and  shall  upon 
conviction  be  punished  by  a  fine  not  exceeding  three  hundred 
dollars,  or  imj)risonment  in  the  county  jail  not  exceeding  three 
months,  or  by  both  such  fine  and  imprisonment.  1876,  ch.  86, 
sec.  2;  G.  S.  1878,  ch.  124,  sec.  14. 

Full  quantity  and  ^rade  to  be  delivered  : 

It  shall  be  the  duty  of  every  person,  association  or  corpora- 
tion receiving  any  grain  for  storage,  .upon  the  demand  of  the 
bailee,  or  his  assigns  or  representatives,  and  tender  of  all  charges 
for  storage  and  money  advanced  by  the  bailee,  and  upon  the 
faith  and  credit  of  such  bailment,  and  offer  to  surrender  and 
(any)  receipt  or  other  written  instrument  evidencing  the  re- 
ceipt of  such  grain  for  storage,  to  deliver  to  the  person  entitled 
thereto  a  quantity  of  grain  equal  in  amount  and  of  the  kind 
and  grade  delivered  to  such  bailee.  Every  person  and  every 
member  of  any  association  or  corporation  who  shall,  after  de- 
mand, tender  and  offer,  as  provided  in  section  three  of  this  act, 
willfully  neglect  or  refuse  to  deliver  to  the  person  making  such 
demand,  the  full  amount  of  grain  of  the  kind  and  grade  which 
such  person  is  entitled  to  demand  of  such  bailee,  shall  be  deemed 
guilty  of  larceny,  and  shall  be  punished  by  fine  or  imprisonment, 
or  both,  as  is  prescribed  by  law  for  the  i)unishment  of  larceny. 
1876,  ch.  86,  sec.  3;  G.  S.  1878,  ch.  124,  sec.  15. 

Same — Action  for  failure  to  redeliver  : 

Whenever,  upon  any  demand,  tender  or  offer,  as  provided  in 
section  three  of  this  act,  any  such  bailee  shall  neglect  or  refuse 


882  MINNESOTA    LAWS. 

to  deliver  any  grain  received  for  storage,  or  a  quantity  of  grain 
equal  in  amount  and  of  the  same  kind  and  grade  as  received, 
any  such  bailor,  or  his  assigns  or  representatives,  may  com- 
mence in  any  court  having  jurisdiction  thereof,  an  action  against 
such  bailee,  to  recover  possession  of  a  quantity  of  grain  equal 
in  amount  and  of  the  same  kind  and  grade  as  that  delivered 
to  such  bailee,  and  in  every  action  it  shall  be  the  duty  of  the 
sheriff  or  other  proper  officer,  to  take  into  his  possession,  from 
the  warehouse  of  such  bailee,  or  other  place  where  he  may  have 
the  same,  a  quantity  of  grain  ec[ual  in  amount  and  of  the  same 
grade  as  that  specified  in  the  affidavit  made  on  writ  issued  in 
such  action.  Such  action  shall  be  commenced  and  prosecuted, 
if  in  district  court,  in  the  manner  j)rovi(led  in  actions  for  the 
claim  and  delivery  of  personal  pi'operty;  and  if  in  justice  courts, 
in  the  manner  provided  in  actioris  for  replevin.  1876,  ch.  86, 
sec.  4;  G.  S.  1878,  ch.  124,  sec.  16. 

Warehouse  receipts,  etc.,  negotiable — Exception  : 

Warehouse  receii)ts,  given  for  any  goods,  wares  or  merchan- 
(hse,  grain,  flour,  produce  or  other  commodity,  stored  or  de- 
posited with  any  warehouseman,  or  other  person  or  corpora- 
tion in  this  state,  or  bills  of  lading,  or  receipt  for  the  same, 
when  in  transit  by  cars  or  vessels  to  any  such  warehouseman, 
or  other  person,  shall  be  negotiable,  and  ma}^  be  transferred  by 
indorsement  and  delivery  of  such  receipt  or  bill  of  lading;  and 
any  person  to  whom  the  said  receipt,  or  bill  of  lading,  may  be 
transferred,  shall  be  deemed  and  taken  to  be  the  owner  of  the 
goods,  wares  or  merchandise  therein  specified,  so  as  to  give 
security  and  validity  to  any  lien  created  on  the  same,  subject 
to  the  payment  of  freight  and  charges  thereon:  Provided, That 
all  warehouse  receipts,  or  bills  of  lading,  which  shall  have  the 
words  "not  negotiable"  plainly  written  or  stami)ed  on  the  face 
thereof,  shall  be  exempt  from  the  provisions  of  this  act.  1876, 
ch.  86,  sec.  5;  G.  S.  1878,  ch.  124,  sec.  17. 

No  delivery,  etc.,  without  authority  of  owner  : 

No  person  receiving  or  holding  grain  in  store  shall  sell  or 
otherwise  dispose  of,  or  deliver  out  of  the  storehouse  or  ware- 
house where  such  grain  is  held  or  stored,  the  same,  or  any  part 


MINNESOTA.  883 

thereof,  without  the  express  authority  of  the  owner  of  such 
grain  and  the  return  of  the  receipt  given  for  tin!  same,  except  as 
herein  provided.     1876,  ch.  86,  sec.  6;  G.  S.  1878,  cii.  124,  sec.  18. 

Different  grades  not  to  be  mixed,  etc.  : 

It  shall  be  unlawful  for  any  wai'ehousenian,  or  owner  or 
keeper  of  any  elevator,  or  any  agent  of  either,  to  mix  together 
any  grain  of  different  grades,  so  received  in  store,  or  to  select 
different  ([ualities  thereof  of  the  same  grade  for  the  i)urpose  of 
storing  or  delivering  the  same,  or  attempt  to  deliver  grain  of 
one  grade  for  another,  or  in  any  way  to  tamper  with  any  grain 
of  other  persons  while  in  his  possession  or  custody,  with  a  view  to 
securing  any  profit  to  himself,  or  any  one,  without  the  consent 
of  the  owner.       1876,  ch.  86,  sec.  7;  G.  S.  1878,  ch.  124,  sec.  19. 

Penalties  : 

Any  warehouseman  or  other  person  violating  any  of  the  {pro- 
visions of  section  six  or  section  seven  of  this  act,  shall  be  deemed 
guilty  of  a  felony,  and  upon  conviction  shall  be  fined  in  a  sum 
not  over  one  -thousand  dollars  or  imprisonment  in  the  state 
prison  of  this  state  not  exceeding  five  years,  or  both.  1876, 
ch.  86,  sec.  8;  G.  S.  1878,  ch.  124,  sec.  20. 

Maximnni  rate  for  liandling  grain  in  elevators,  etc. — Who 
not  to  be  inspectors  : 

It  shall  not  be  lawful  for  any  railroad  comjoany  or  person, 
association  or  corporation  engaged  in  the  business  of  keeping 
an  elevator  or  warehouse  situated  upon  the  line  of  any  railroad 
in  this  state,  for  receiving  and  handling  grain  for  other  persons, 
to  charge  any  greater  sum  than  two  cents  per  bushel  for  re- 
ceiving, elevating,  handling  and  delivering  such  grain;  nor  shall 
it  be  lawful  for  any  such  railroad  company,  person,  association 
or  corporation  to  employ  or  allow  an}''  person  to  act  as  in- 
spector of  the  grain  received  into  their  elevator  or  warehouse 
who  is  in  any  manner  directly  or  indirectly  interested  in  the 
purchase  or  shipping  thereof.  1874,  ch.  31,  sec.  1 ;  G.  S.  1878, 
ch.  124,  sec.  7. 

When  railroad  company  refuses  to  handle  f^rain  at  legal 
rate — Private  persons,  etc.,  may  erect  elevators,  etc.  : 

When  any  raih'oad  comj)any  shall  refuse  to  receive,  store, 


384  MINNESOTA    LAWS. 

handle  and  deliver  grain,  at  any  station  on  the  road,  at  the 
rates  provided  in  section  one  of  this  act,  then  in  such  case,  said 
railroad  company  shall,  upon  demand,  allow  any  person,  asso- 
ciation or  corporation,  to  erect  and  maintain,  at  such  station, 
adjoining  the  railroad  track,  or  side-track,  warehouses  to  re- 
ceive, store  and  shi})  grain;  or,  at  the  option  of  the  raih'oad 
company,  such  company  shall  build  and  maintain  a  side-track 
to  and  for  the  use  and  accommodation  of  any  warehouse  near 
the  station.  And  no  person  keeping  a  warehouse  or  elevator 
shall  in  any  case  be  compelled  to  pay  the  railroad  company  or 
any  person  keeping  any  other  warehouse  or  elevator,  an}'^  sum 
or  compensation  for  or  on  account  of  the  privilege  of  doing 
business.     1874,  ch.  31,  sec.  2;  G.  S.  1878,  ch.  124,  sec.  8. 

Penalty  for  violating  this  act : 

Any  railroad  company,  or  any  keeper  of  any  warehouse  or 
elevator,  or  any  person,  who  shall  violate  any  of  the  provisions 
of  this  act,  shall  be  deemed  guilty  of  a  misdemeanor,  and,  upon 
conviction  thereof,  shall  be  fined  in  a  sum  not  less  than  one 
hundred  nor  more  than  five  hundred  dollars,  in  the  discretion 
of  the  court.     1874,  ch.  31,  sec.  3;  G.  S.  1878,  ch.  124,  sec.  9. 

Chapter  144,  General  Laws,  1885. 
An  Act   to   regulate   warehouses,   inspection,    weighing  and 
handling  of  grain. 

Be  it  enacted  by  the  Legislature  of  the  State  of  Minnesota : 
Section  1.  Diduth,  Minneapolis  and  St.  Paul  elevators — Public. 
All  elevators  or  warehouses  located  at  Minneapolis,  St.  Paul  and 
Duluth,  in  this  state,  in  which  grain  is  stored  in  bulk,  and  in 
which  the  grain  of  different  owners  is  mixed  together,  or  in 
which  grain  is  stored  in  such  a  manner  that  the  identity  of  the 
different  lots  or  parcels  cannot  be  accurately  preserved,  and 
doing  business  for  a  compensation,  are  hereby  declared  to  be 
public  warehouses. 

Sec.  2.  Proprietors  of  public  warehouses  to  procure  license. 
The  proprietor,  lessee,  or  manager  of  any  public  warehouse  shall 
be  required,  before  transacting  any  business,  to  procure  from 
the  railroad  and  warehouse  commissioners,  a  license  permitting 
such  proprietor,  lessee  or  manager  to  transact  business  as  e 


MINNESOTA.  385 

public'  warehouseman  under  the  laws  of  this  state;  which  license 
shall  be  issued  by  the  railroad  and  warehouse  commissioners 
upon  written  application,  which  shall  set  forth  the  location  and 
name  of  such  warehouse,  and  the  individual  name  of  each  per- 
son interested  as  owner  or  principal  in  the  management  of  the 
same;  or,  if  the  warehouse  be  owned  or  managed  by  a  corpora- 
tion, the  name  of  the  president,  secretary  and  treasurer  of  such 
corporation  shall  be  stated,  and  the  said  license  shall  give  au- 
thority to  carry  on  and  conduct  the  business  of  public  ware- 
house in  accordance  with  the  laws  of  the  state,  and  shall  be 
revocable  by  said  conunissioners  upon  a  summary  proceetUng 
before  the  commissioners  upon  complaint  of  any  person,  in 
writing,  setting  forth  the  particular  violation  of  law,  and  upon 
satisfactory  proof,  to  be  taken  in  such  manner  as  may  be  di- 
rected by  the  commissioners. 

Sec.  3.  Bonds  required — Fee  for  license.  The  person  receiving 
license  as  herein  provided  shall  file  with  the  conunissioners 
granting  the  same  a  bond  to  the  state  of  Minnesota,  with  good 
and  sufficient  sureties,  to  be  approved  by  said  commissioners, 
in  the  penal  sum  of  not  less  than  ten  thousand  (10,000)  dollars 
nor  more  than  fifty  thousand  (50,000)  dollars,  in  the  discretion 
of  the  railroad  and  warehouse  conunissioners,  for  each  ware- 
house licensed  in  the  county,  conditional  for  the  faithful  per- 
formance of  his  duties  as  a  public  warehouseman,  and  his  full 
and  unreserved  compliance  with  all  laws  of  this  state  in  relation 
thereto.  A  fee  for  the  issuance  of  each  license  of  two  (2)  dollars 
shall  be  paid  by  the  person  applying  for  the  same;  Provided, 
That  when  any  person  or  corporation  procures  a  license  for  more 
than  one  warehouse  in  any  county  in  the  state,  no  more  than 
one  bond  need  be  given. 

Sec.  4.  Penalty  for  transacting  business  of  'public  warehouseman 
without  license.  Any  person  who  shall  transact  the  business  of 
a  public  warehouseman  without  first  procuring  a  license  as 
herein  provided,  or  who  shall  continue  to  transact  any  such 
business  after  such  license  has  been  revoked  Csave  only  that  he 
may  be  permitted  to  deliver  property  previously  stored  in  such 
warehouse),  shall  on  conviction  b\'  indictment  be  fin(^d  in  a  sum 
not  less  than  one  hundred  (100)  dollars  nor  more  than  five  hun- 
25 


886  MINNESOTA    LAWS. 

dred  (500)  dollars  for  each  and  every  day  such  business  is  car- 
ried on,  and  the  railroad  and  warehouse  conunissioners  may 
refuse  to  renew  any  license,  or  grant  a  new  one  to  any  of  the 
persons  whose  license  has  been  revoked  within  one  (1)  year 
from  the  time  the  same  was  revoked. 

Above  sections  coustrued — License  required  of  warehonse- 
inau  storing  his  own  grain  exclusively  : 

Where  the  defendant's  warehouse  was  used  for  the  storage 
of  his  own  grain  onl}^,  it  was  held  that  the  weighing  and  grad- 
ing of  his  grain  was  so  related  to  the  public  interest  that  the 
legislature  could  properly  recjuire  such  owner  to  take  out  a 
license.  State  ex  rel,  etc.,  v.  W.  W.  Cargill  Co.,  77  Minn.  233, 
aff'd  180  U.  S.  452. 

Sec.  5.  Duties  of  public  ivarehousevien  —  Discrimination  'pro- 
hibited— also  mixing  of  grain  without  permission  of  owner.  It 
shall  be  the  duty  of  every  public  warehouseman  to  receive  for 
storage  any  grain,  dry  and  in  a  suitalile  condition  for  ware- 
housing that  may  be  tendered  to  him  in  the  usual  manner  in 
which  such  warehouses  are  accustomed  to  receive  the  same  in 
the  ordinary  and  usual  course  of  business,  not  making  any  dis- 
crimination between  persons  desiring  to  avail  themselves  of 
warehouse  facilities,  such  grain  to  be  in  all  cases  inspected  and 
graded  by  a  duly  authorized  inspector,  and  to  be  stored  with 
grain  of  a  similar  grade.  And  in  no  case  shall  grain  of  a  differ- 
ent grade  be  mixed  together  wiiile  in  store,  but  if  the  owner  or 
consignee  so  requests,  and  the  warehouseman  consents  thereto, 
his  grain  of  the  same  grade  may  be  kept  in  a  bin  by  itself  apart 
from  that  of  other  owners,  which  bin  shall  thereupon  be  marked 
and  known  as  a  special  bin.  If  a  warehouse  receipt  be  issued 
for  grain  so  kept  separate,  it  shall  state  on  its  face  that  it  is  in 
a  special  bin,  and  shall  state  the  number  of  such  bin,  and  all 
grain  delivered  from  such  warehouse  shall  be  inspected,  on  its 
delivery,  by  a  duly  authorized  inspector  of  grain.  Nothing  in 
this  section  shall  be  construed  so  as  to  require  the  receipt  of  any 
kind  of  grain  into  any  warehouse  in  which  there  is  not  sufficient 
room  to  accommodate  or  to  store  it  properly,  or  in  cases  where 
such  warehouse  is  necessarily  closed.  The  charges  for  inspec- 
tion, upon  receipt  and  dehvery,  shall  be  paid  by  the  warehouse- 


MINNKSOTA.  887 

man,  and  may  be  added  to  the  charge  of  the  storage.  The  chief 
inspector  may  recover  such  charges  of  the  warehouseman  by  an 
appropriate  action  in  his  name. 

Sec.  6.  Public  warehouseman  shall  issue  numbered  receipts  for. 
Upon  appHcation  of  the  owner  or  consignee  of  grain  stores  1  in 
a  public  warehouse,  the  same  being  accompanied  with  evidence 
that  all  transportation  or  other  charges  which  may  b(;  a  Yum 
upon  the  grain,  including  charges  for  inspection  and  weighing, 
have  been  paid,  the  warehouseman  shall  issue  to  the  person  en- 
titled to  receive  it  a  warehouse  receipt  therefor,  subject  to  the 
order  of  the  owner  or  consignee,  which  receipt  shall  bear  date 
corresj)onding  with  the  receipt  of  the  grain  in  store,  and  shall 
state  upon  its  face  the  quantity  and  inspected  grade  of  the 
grain,  and  that  the  grain  mentioned  on  it  has  been  received 
into  store  to  be  stored  with  grain  of  the  same  grade  by  inspec- 
tion; and  that  it  is  deliverable  upon  the  return  of  the  receipt 
properly  indorsed  by  the  person  to  whose  order  it  was  issued, 
and  the  payment  of  proper  charges  for  storage.  All  warehouse 
receipts  for  grain  issued  by  the  same  warehouse  shall  be  con- 
secutively numbered,  and  no  two  receipts  bearing  the  same 
number  shall  be  issued  from  the  same  warehouse  during  any 
one  year,  except  in  case  of  a  lost  or  destroyed  receipt,  in  whicli 
case  the  new  receipt  shall  bear  the  same  date  and  number  as  the 
original,  and  shall  be  plainly  marked  on  its  face  "Duphcate." 
If  the  grain  was  received  from  railroad  cars  the  number  of  each 
car  shall  be  stated  upon  the  receijjt,  with  the  amount  it  con- 
tained ;  if  from  barges  or  other  vessels,  the  name  of  such  craft ; 
if  from  team  or  by  other  means,  the  manner  of  its  receipt  shall 
be  stated  on  its  face. 

Sec.  7.  Receipts  cancelled  on  delivery  of  (jrain  by  elevator,  etc. 
Upon  the  delivery  of  grain  from  store  upon  any  receipt,  such 
receipt  shall  be  plainly  marked  across  its  face  the  word  "Can- 
celled," with  the  name  of  the  person  cancelling  the  same,  and 
shall  thereafter  be  void,  and  shall  not  again  be  put  in  circula- 
tion, nor  shall  grain  be  delivered  twice  upon  the  same  receipt. 
No  warehouse  receipt  shall  be  issued  except  upon  actual  de- 
livery of  grain  into  store  in  the  warehouse  from  which  it  pur- 
ports to  be  issued,  and  which  is  to  be  represented  by  the  receipts. 


388  MIXXKSOTA    LAWS. 

Nor  shall  any  receipt  be  Issued  for  a  greater  quantity  of  grain 
than  was  contained  in  the  lot  or  parcel  stated  to  have  been  re- 
ceived. Nor  shall  more  than  one  receipt  be  issued  for  the  same 
lot  of  grain,  except  in  cases  where  receipt  for  a  part  of  a  lot  is 
desired,  and  then  the  aggregate  receipt  for  a  particular  lot  shall 
cover  that  lot  and  no  more.  In  cases  where  a  part  of  the  grain 
re})resented  by  the  receipt  is  flelivered  out  of  store,  and  the  re- 
mainder is  left,  a  new  receipt  may  be  issued  for  such  remainder, 
but  the  new  receipt  shall  bear  the  same  date  as  the  original,  and 
shall  state  on  the  face  that  it  is  balance  of  receipt  of  the  original 
mmil^er,  and  the  receipt  upon  which  a  i)art  has  been  delivered 
shall  be  cancelled  in  the  same  manner  as  if  it  had  all  been  de- 
livered. In  case  it  be  desirable  to  divide  one  receipt  into  two 
or  more,  or  in  case  it  be  desirable  to  consolidate  two  or  more 
receipts  into  one,  and  the  warehouseman  consents  thereto,  the 
original  receipt  shall  be  cancelled  the  same  as  if  the  grain  had 
been  delivered  from  store,  and  the  new  receipts  shall  express  on 
their  face  that  they  are  a  part  of  another  receijDt  or  a  consolida- 
tion of  other  receipts,  as  the  case  may  be;  and  the  numbers  of 
the  original  receipts  shall  also  appear  upon  the  new  ones  issued, 
as  explanatory  of  the  change;  but  no  consolidation  of  receipts 
of  dates  differing  more  tlian  ten  (10)  days  shall  be  permitted, 
and  all  new  receipts  issued  for  old  ones  cancelled,  as  herein  pro- 
vided, shall  bear  the  same  date  as  those  originally  issued,  as 
near  as  may  be. 

Sec.  8.  Liability  of  warehouse.  No  warehouseman  in  the  state 
shall  insert  in  any  receipt  issued  by  him  any  language  in  any- 
wise limiting  or  modifying  his  liabilities  or  responsibility  as  im- 
posed by  the  laws  of  this  state. 

Sec.  9.  On  return  of  warehouse  receipt  property  shall  be  delivered. 
On  the  return  of  any  warehouse  receipt  by  him  properly  in- 
dorsed, and  the  tender  of  all  proper  charges  upon  the  property 
represented  by  it,  such  property  shall  be  immediately  deliver- 
able to  the  holder  of  such  receipt,  and  it  shall  not  be  subject  to 
any  further  charges  for  storage  after  demand  for  such  delivery 
shall  have  been  made,  and  the  property  represented  by  such 
receipt  shall  be  delivered  within  twenty-four  (24)  hours  after 
such  demand  shall  have  been  made,  and  the  cars  or  vessels  for 


MINNKSOTA.  889 

the  same  shall  have  hccn  tuniishcd.  Thr  warehouscinaii  in 
default  shall  l)c  liable  to  the  owner  ol'  such  receij)!  I'oi"  damages 
for  such  default  in  the  sum  of  one  (f  j  cent  per  bushel,  and  in 
addition  thereto  one  (1)  cent  per  bushel  for  each  and  every  day 
of  such  neglect  or  refusal  to  deliver;  Provided,  No  warehouseman 
shall  be  held  to  be  in  default  in  delivery  if  the  property  is  deliv- 
ered in  the  order  demanded,  and  as  rapidly  as  due  diligence, 
care  and  prudence  will  justify. 

Sec.  10.  Statement  of  condition  and  management  of  elevators. 
It  shall  be  the  duty  of  every  owner,  lessee  and  managei'  of  every 
public  warehouse  in  the  state  to  furnish  in  writing  under  oath 
at  such  times  as  the  board  of  warehouse  commissioners  shall 
require  and  prescribe,  a  statement  concerning  the  condition  and 
management  of  the  business  as  such  warehousem;in. 

Sec.  11.  Statement  of  kind  ami  grade  of  grain.  Ddily  report.^ 
to  be  furnished  registrar.  The  warehousemen  of  every  public 
warehouse  located  at  Minneapolis,  St.  Paul  and  Dulutli.  shall, 
on  or  before  Tuesday  morning  of  each  week,  cause  to  be  made 
out,  and  shall  keep  posted  up  in  the  business  office  of  his  ware- 
house in  a  conspicuous  place,  a  statement  of  the  amount  of  each 
kind  and  grade  of  grain  in  store  in  his  warehouse  at  the  close  of 
the  business  on  the  previous  Saturday,  and  shall  also  on  each 
Tuesday  morning  render  a  similar  statement,  made  under  oath, 
before  some  officer  authorized  by  law  to  administer  oaths,  by 
one  of  the  principal  owners  or  operators  thereof,  or  by  the  book- 
keeper thereof,  having  personal  knowledge  of  the  facts,  to  the 
warehouse  registrar  appointed  as  hereinafter  provided. 

They  shall  also  be  required  to  furnish  daily  to  the  said  registrar 
a  correct  statement  of  the  amount  of  each  kind  and  grade  of 
grain  received  in  store  in  such  warehouse  on  th(^  j)revious  day, 
also  the  amount  of  each  kind  and  grade  of  grain  delivered  or 
shipped  by  such  warehouseman  during  the  pre\dous  day,  and 
what  warehouse  receipts  have  been  cancelled  upon  which  the 
grain  has  been  delivered  on  such  day,  giving  the  number  of  each 
receipt,  and  amount,  kind  and  grade  of  grain  received  and 
shipped  upon  each;  also  how  much  grain,  if  any,  was  so  fleliv- 
ered  or  shipped,  and  the  kind  and  grade  of  it,  for  which  ware- 
house receipts  had  not  been  issued,  and  when  and  how  such  un- 


:390  MINNESOTA   LAWS. 

receipted  grain  was  received  by  them,  the  aggregate  of  such 
reported  cancellations  and  delivery  of  unreceipted  grain  corre- 
sponding in  amount,  kind  and  grade  with  the  amount  so  reported 
delivered  or  shipped.  They  shall  also  at  the  same  time  report 
what  receipts,  if  any,  have  been  cancelled  and  new  ones  issued 
in  their  stead,  as  herein  provided  for.  And  the  warehouseman 
making  such  statements  shall,  in  addition,  furnish  the  said 
registrar  any  further  information  regarding  receipts  issued  or 
cancelled  that  may  be  necessary  to  enable  him  to  keep  a  full  and 
correct  record  of  all  receipts  issued  and  cancelled  and  of  grain 
received  and  delivered. 

Sec.  12.  Secretary  of  commissioners.  It  is  hereby  made  the 
duty  of  the  secretary  of  the  railroad  and  warehouse  commis- 
sioners to  act  as  registrar  in  accortlance  with  the  spirit  and  in- 
tent of  section  eleven  (11)  of  this  act. 

Sec.  13.  Scliedule  of  rates  for  storage  to  be  published — Max- 
imum rates  fixed.  Every  warehouseman  of  public  warehouses 
located  at  Minneapolis,  St.  Paul  and  Duluth,  shall  be  required 
during  the  first  (1st)  week  in  September  of  each  year  to  publish 
in  one  (1)  or  more  of  the  newspapers  (daily  if  there  be  such) 
published  in  the  city  or  village  in  which  such  warehouse  is  situ- 
ated, a  table  or  schedule  of  rates  for  the  storage  of  grain  in  his 
warehouse  during  the  ensuing  year,  which  rates  shall  not  be 
increased  during  the  year,  and  such  published  rates,  or  any 
published  reduction  of  them,  shall  apply  to  all  grain  received 
into  such  warehouse  from  any  person  or  source,  and  no  dis- 
crimination as  to  rates  shall  be  made,  directly  or  indirectly, 
by  such  warehouseman  for  the  storage  of  grain.  The  maximum 
charge  for  storage  and  handling  of  grain,  including  the  cost  of 
receiving  and  delivering,  shall  be,  for  the  first  (1st)  fifteen  (15) 
days  or  part  thereof,  one  and  one-half  (1-^)  cents  per  bushel, 
and  for  each  fifteen  (15)  days,  or  part  thereof,  after  the  first  (1st) 
fifteen  (15)  days,  one-half  (h)  cent  per  bushel,  and  for  contin- 
uous storage  between  the  fifteenth  (15th)  day  of  November  and 
the  fifteenth  (15th)  day  of  May  following,  not  more  than  four  (4) 
cents  per  bushel. 

Sec.  14.  Mixi7ig  of  different  grades  prohibited — A'Ot  liable  for 
damage  by  fire,  or  heating,  ivhen — Public  notice  ivhen  grain  is 


MINNESOTA.  391 

found  out  of  condition — Liable  for  negligence — Grain  sold  at 
auction,  icheii.  It  shall  not  bo  lawful  for  any  public  warehouse- 
man to  mix  any  grain  of  tlifferont  grades  together,  or  to  select 
different  qualities  of  the  same  grade  for  the  purpose  of  storing 
or  delivering  the  same;  nor  shall  he  attempt  to  deliver  grain  of 
one  grade  for  another,  or  in  any  way  tamper  with  grain  while 
in  his  possession  or  custody,  with  a  view  of  securing  any  profit 
to  himself  or  any  other  person.  And  in  no  case,  even  of  grain 
stored  in  a  separate  bin,  shall  he  be  permitted  to  mix  grain  of 
different  grades  together  while  in  store.  He  may,  however,  on 
request  of  the  owner  of  any  grain  stored  in  a  private  bin,  be  per- 
mitted to  dry,  clean,  or  otherwise  improve  the  condition  or  value 
of  any  such  lot  of  grain,  but  in  such  case  it  shall  only  be  deliv- 
ered as  such  separate  lot,  or  as  the  grade  it  was  originally  in- 
spected when  received  b}^  him,  without  reference  to  the  grade 
it  may  be  as  improved  by  such  process  of  drying  or  cleaning. 
Nothing  in  this  section,  however,  shall  prevent  any  warehouse- 
man from  removing  grain  while  wdthin  his  warehouse  for  its 
preservation  or  safe-keeping.  No  public  warehouseman  shall 
be  held  responsible  for  any  loss  or  damage  to  property  by  fire 
while  in  his  custody,  provided  reasonable  care  and  vigilance  be 
exercised  to  protect  and  preserve  the  same;  nor  shall  he  be  held 
liable  for  damage  to  grain  by  heating,  if  it  can  be  shown  that  he 
has  exercised  proper  care  in  handling  and  storing  the  same,  and 
that  such  heat  or  damage  was  the  result  of  causes  beyond 
his  control;  and  in  order  that  no  injustice  may  result  to  the 
holder  of  grain  in  any  public  warehouse  of  Minneapolis,  St.  Paul 
and  Duluth,  it  shall  be  deemed  the  duty  of  such  warehouseman 
to  dispose  of,  by  delivery  or  shipping  in  the  ordinary  and  legal 
manner  of  so  delivering,  that  grain  of  any  particular  grade 
which  was  at  first  received  by  them  or  which  has  been  for  the 
longest  time  in  store  in  his  warehouse,  and  unless  public  notice 
has  been  given  that  some  portion  of  the  grain  in  his  warehouse 
is  out  of  condition,  or  becoming  so,  such  warehouseman  shall 
deliver  grain  of  quality  equal  to  that  received  by  him,  on  all 
receipts  as  presented.  In  case,  however,  any  warehouseman 
of  Minneapolis,  St.  Paul  or  Duluth  shall  discover  that  any  por- 
tion of  the  grain  in  his  warehouse  is  out  of  condition,  or  becom- 


392  MINNESOTA   LAWS. 

ing  so,  and  it  is  not  in  his  power  to  preserve  the  same,  he  shall 
immediately  give  pubUc  notice  by  advertising  in  a  daily  news- 
paper in  the  city  in  which  such  warehouse  is  situated,  and  by 
posting  a  notice  in  the  most  public  place  (for  such  purpose)  in 
such  city,  of  its  actual  condition  as  near  as  he  can  ascertain. 
It  shall  state  in  such  notice  the  kind  and  grade  of  the  grain,  and 
the  bins  in  which  it  is  stored,  and  shall  also  state  in  such  notice 
the  receipts  outstanding,  upon  wliich  such  grain  will  be  deliv- 
ered, giving  the  numbers,  a'lnounts  and  dates  of  each,  which 
receipts  shall  be  those  of  the  oldest  dates  then  in  circulation  or 
uncancelled,  the  grain  represented  by  which  has  not  previously 
been  declared  or  receipted  for  as  out  of  condition ;  or  if  the  grain 
longest  in  store  has  not  been  receipted  for,  he  shall  so  state,  and 
shall  give  the  name  of  the  party  for  whom  such  grain  was  stored, 
the  date  it  was  received,  and  the  amount  of  it,  and  the  enumera- 
tion of  receipts,  and  identification  of  grain,  as  so  discredited, 
shall  embrace  as  near  as  may  be,  as  great  a  quantity  of  grain 
as  is  contained  in  such  bins.  And  such  grain  shall  be  delivered 
upon  the  return  and  cancellation  of  the  receipts,  and  the  unre- 
ceipted grain  upon  the  request  of  the  owner  or  persons  in  charge 
thereof.  Nothing  herein  contained  shall  be  held  to  relieve  the 
said  warehouseman  from  exercising  proper  care  and  vigilance 
in  preserving  such  grain  after  such  publication  of  its  condition, 
but  such  grain  shall  be  kept  separate  and  apart  from  all  direct 
contact  with  other  grain,  and  shall  not  be  mixed  with  other 
grain  while  in  store  in  such  warehouse.  Any  warehouseman 
guilty  of  any  act  or  neglect,  the  effect  of  which  is  to  depreciate 
property  stored  in  the  warehouse  under  his  control,  shall  be 
held  responsible  as  at  common  law,  or  upon  the  bond  of  such 
warehouseman,  and  in  addition  thereto  the  license  of  such  ware- 
houseman, if  his  warehouse  be  in  Minneapolis,  St.  Paul  or  Du- 
luth,  shall  be  revoked.  Nothing  in  this  action  shall  be  so  con- 
strued as  to  permit  any  warehouseman  to  deliver  any  grain 
stored  in  a  special  bin,  or  by  itself,  as  provided  in  this  act,  to 
any  but  the  owner  of  the  lot,  whether  the  same  be  represented 
by  a  warehouse  receipt  or  otherwise.  In  case  the  grain  declared 
out  of  condition,  as  herein  provided  for,  shall  not  be  removed 
from  store  by  the  owner  thereof  within  two  (2)  months  from 


MINNESOTA.  39<>, 

the  (late  of  the  notice  of  its  being  out  of  condition,  it  shall  be 
lawful  for  the  warehouseman,  where  the  grain  is  stored,  to  sell 
the  same  at  public  auction,  for  account  of  said  ownci-,  by  giving 
ten  (10)  days'  public  notice  by  advertisement  in  a  newspaper 
(daily  if  there  be  such)  published  in  the  city  or  town  where  such 
warehouse  is  located. 

Sec.  15.  All  property  in  public  elevators  shall  be  subject  to  exam- 
ination— Scales  must  be  sealed.  All  persons  owning  property, 
or  who  may  be  interested  in  the  same,  in  any  public  warehouse, 
and  all  duly  authorized  inspectors  of  such  property,  shall  at  all 
times  during  ordinary  business  hours,  })e  at  full  lil)erty  to  exam- 
ine any  and  all  property  stored  in  any  public  warehouse  in  this 
state.  And  all  proper  facilities  shall  be  extended  to  such  per- 
son by  the  warehouseman,  his  agents,  and  servants,  for  an  ex- 
amination, and  all  parts  of  the  public  warehouses  shall  be  free 
for  the  inspection  and  examination  of  any  person  interested  in 
property  stored  therein,  or  of  any  authorized  inspector  of  such 
property.  And  all  scales  used  for  the  weighing  of  property  in 
public  warehouses  shall  be  subject  to  examination  and  test  by 
any  duly  authorized  inspector,  weighmaster,  or  sealer  of  weights 
and  measures,  at  any  time  when  required  by  any  person  or  per- 
sons, agent  or  agents,  whose  property  has  been  or  is  to  be 
weighed,  on  such  scales.  The  exi)ense  of  such  test  by  an  in- 
spector or  sealer  to  be  paid  by  the  warehouse  proprietor  if  the 
scales  are  found  incorrect,  but  not  otherwise.  Any  warehouse- 
man who  may  be  guilty  of  continuing  to  use  scales  found  to  be 
in  an  imperfect  or  incorrect  condition  by  such  examination  and 
test,  until  the  same  shall  have  been  pronounced  correct  and 
properly  sealed,  shall  be  liable  to  be  proceeded  against  as  heiv- 
inafter  provided. 

Sec.  16.  State  weighmasters.  The  railroad  and  warehouse  com- 
missioners shall  appoint  in  ail  cities  where  there  is  state  insj)ec- 
tion  of  grain,  a  state  weighmaster  and  such  assistants  as  shall 
be  necessary. 

Sec.  17.  State  supervision  of  weighing  grain.  [Said  state 
weighmaster  and  assistants  shall,  at  the  i^laces  of  St.  Paul, 
Minneapolis,  Duluth  and  St.  Cloud,  supervise  and  have  exclu- 
sive control  of  the  weighing  of  grain  and  other  property  which 


394  AnXNESOTA    LAWS. 

may  be  subject  to  inspet-tioii,  except  when  otherwise  ordered 
or  directed  by  the  pai'ty  shipping  the  same,  and  the  inspection 
of  scales;  and  the  action  and  certificates  of  such  weighmaster 
and  his  assistants  in  the  discharge  of  their  aforesaid  duties  shall 
be  conclusive  upon  all  parties,  either  in  interest  or  other\vise, 
as  to  the  matters  contained  in  said  certificates.] 

Amendment  in  brackets  approved  April  5,  1893. 

Sec.  IS.  Fees  of  mme.  The  board  of  railroad  and  warehouse 
commissioners  shall  fix  the  fees  to  be  paid  for  the  weighing  of 
grain  and  other  property,  which  fees  shall  be  paid  by  the  ware- 
houseman, and  may  be  added  to  the  charges  for  storage. 

Sec.  19.  Qualification — Bond.  Said  state  weighmaster  and  as- 
sistants shall  not  be  a  member  of  any  board  of  trade  or  associa- 
tion of  like  character.  They  shall  give  bonds  in  the  sum  of  five 
thousand  (5,000)  dollars  conditioned  for  the  faithful  discharge 
of  their  duties,  and  shall  receive  such  compensation  as  the  board 
of  railroad  and  warehouse  commissioners  shall  determine. 

Sec.  20.  Rules  and  regulations.  The  railroad  and  warehouse 
commissioners  shall  adopt  such  rules  and  regulations  for  the 
weighing  of  grain  and  other  property  as  they  shall  deem  proper. 

Sec.  21.  Penalty  for  refusing  weighmaster  access  to  scales,  etc. 
In  case  any  person,  warehouse,  or  railroad  corporation,  or  any 
of  their  agents  or  employees  shall  refuse  or  prevent  the  afore- 
said state  weighmaster,  or  either  of  his  assistants  from  having 
access  to  their  scales,  in  the  regular  performance  of  their  duties 
in  supervising  the  weighing  of  any  grain  or  other  property  in 
accordance  with  the  tenor  and  meaning  of  this  act,  they  shall 
forfeit  the  sum  of  one  hundred  dOO)  dollars  for  each  offense, 
to  be  recovered  in  an  action  of  debt  before  any  justice  of  the 
peace  in  the  name  of  the  state  of  Minnesota,  such  penalty  or 
forfeiture  to  be  paifl  to  the  state  treasurer  for  the  benefit  of  the 
grain  inspection  fund,  and  shall  also  be  required  to  pay  all  costs 
of  prosecution. 

Sec.  22.  Chief  inspector  to  he  appointed — Term  of  office — Bonds. 
It  shall  be  the  duty  of  the  railroad  and  warehouse  commissioners 
to  appoint  a  suitable  person  as  chief  inspector  of  grain  in  the 
state  of  Minnesota,  who  shall  hold  his  office  for  the  term  of 
two  (2)  years,  unless  sooner  removed  by  said  railroad  and  ware- 


MIXNESOTA.  39r> 

house  commissioners,  who  .sliall,  before  entering  upon  the  thities 
of  his  office,  take  an  oath  of  office,  as  in  the  case  of  other  state 
officers,  and  shall  execute  a  bond  to  the  state  of  Minnesota,  in 
the  penal  sum  of  ten  thousand  (10,000)  dollars,  with  good  and 
sufficient  sureties,  to  be  approved  by  the  railroad  and  ware- 
house commissioners,  conditioned  that  he  will  faithfully  and 
impartially  discharge  the  tluties  of  the  office  of  chief  inspector 
according  to  law  and  the  rules  and  regulations  of  said  railroad 
and  warehouse  conmiissioners,  and  that  he  will  j^ay  all  damages 
to  any  person  or  persons  who  may  be  injured  by  reason  of  his 
neglect  or  failure  to  comply  with  the  law  or  the  rules  and  regu- 
lations aforesaid. 

Sec.  23.  Deputy  inspectors.  Said  chief  inspectors  shall  ap- 
point, subject  to  the  approval  of  the  railroad  and  warehouse 
commissioners,  such  number  of  deputy  inspectors  as  may  be 
required,  one  of  which  cU^jnities  in  each  of  the  cities  of  St.  Paul 
and  Minneapolis,  and  the  village'  of  Dulutli  shall  he  denomi- 
nated and  styled  chief  deputy. 

Sec.  24.  Oath — Borid  of  deputies.  Such  deputy  inspectors  shall 
take  a  like  oath  of  office  to  that  required  from  the  chief  inspector, 
and  shall  give  a  bontl  to  the  state  of  Minnesota  in  the  penal 
sum  of  five  thousand  (5,000)  dollars,  with  such  good  and  suffi- 
cient sureties  as  may  be  approved  by  the  railroad  and  warehouse 
commissioners,  and  conditioned  in  like  manner  as  the  railroad 
and  warehouse  commissioners  require  from  the  chief  inspector. 

Sec.  25.  Bonds  to  he  filed  with  secretary  of  state.  The  bonds 
given  by  the  chief  inspector  and  the  (le]3uty  inspectors  shall  ho. 
filed  in  the  office  of  the  secretary  of  state  for  the  state  of  Minne- 
sota, and  suit  may  be  brought  upon  said  bond  or  bonds  in  any 
court  having  jurisdiction  thereof,  for  the  use  of  the  person  or 
the  persons  so  injured. 

Sec.  26.  Chief  inspector  may  remove  deputy.  The  chief  in- 
spector shall  have  power  to  remove  any  of  the  deputy  ins]3ectors 
at  pleasure,  and  said  deputy  inspectors  shall  act  under  the  im- 
mediate control  and  supervision  of  said  chief  inspector. 

Sec.  27.  Rules  for  inspection.  The  chief  inspector  of  grain 
and  all  deputy  inspectors  shall  be  governed  in  their  inspection 
duties  by  such  rules  and  regulations  as  may  be  provided  by  the 


390  MINNESOTA   LAWS. 

railroad  and  warehouse  commissioners;  and  the  said  commis- 
sioners shall  Ikht  power  to  fix  the  rate  of  charges  for  inspection 
of  grain,  and  the  manner  in  which  the  same  shall  be  collected, 
and  which  charges  shall  be  regulated  in  such  manner  as  will,  in 
the  judgment  of  said  conmiissioners,  produce  sufficient  revenue 
to  meet  the  necessary  expenses  of  the  inspection  service,  and 
no  more;  said  railroad  and  warehouse  commissioners  shall  fix 
the  amount  of  compensation  to  be  paid  to  the  chief  inspector 
and  deputy  inspectors,  and  prescribe  the  time  and  manner  of 
payment  thereof;  which  compensation  shall  be  paid  out  of  the 
grain  inspection  fund,  hereinafter  created,  on  the  order  of  the 
railroad  and  warehouse  commissioners. 

Sec.  28.  Restrictions  on  inspector  and  his  deputies.  No  chief 
inspector  or  deputy  inspector  of  grain  shall,  during  his  term  of 
service,  be  interested,  directly  or  indirectly,  in  the  handling,  stor- 
ing, shipping,  purchasing,  or  selling  of  grain,  nor  shall  he  be  in 
the  employment  of  any  person  or  corporation  interested  in  the 
handling,  storing,  shipping,  purchasing,  or  selling  of  grain. 

Sec.  29.  Inspector  may  he  removed  from,  office,  when.  Upon 
complaint,  in  writing,  of  any  person  to  the  railroad  and  ware- 
house commissioners,  supported  by  reasonable  and  satisfactory 
proof,  that  the  chief  inspector,  or  any  of  his  deputies,  have  vio- 
lated any  of  the  rules  prescribed  for  his  government,  or  has  been 
guilty  of  any  improper  official  act,  or  has  been  found  inefficient 
or  incompetent  for  the  duties  of  his  position,  said  person  shall 
be  by  said  railroad  and  warehouse  connnissioners  immediately 
removed  from  office. 

Sec.  30.  Penalty  for  acting  as  inspector  without  authority.  Any 
person  who  shall  assume  to  act  as  an  inspector  of  grain,  who  has 
not  first  been  so  appointed  and  sworn,  shall  be  held  to  be  an 
imposter,  and  shall  be  punished  by  a  fine  of  not  less  than  fifty 
(50)  dollars,  nor  more  than  one  hundretl  (100)  dollars,  for  each 
and  every  attempt  to  so  inspect  grain,  to  be  reco\'ered  before  a 
justice  of  the  peace  in  an  action  of  debt  in  the  name  of  the  state 
of  Minnesota  for  the  use  of  any  person  choosing  to  sue. 

Sec.  31.  Penalty  for  neglect  of  didy  of  inspector.  Any  duly  au- 
thorized inspector  or  deputy  inspector  of  grain,  who  shall  be 
guilty  of  any  neglect  of  duty,  or  who  shall  knowingly  or  care- 


MINNKSOTA.  S97 

lessly  inspect  or  grade  aii}-  <i;raiii  iii^jropcily,  or  who  .shall  accept 
any  money  or  other  consideration,  directly  or  indirectly,  for 
any  neglect  or  duty  or  any  improper  performance  of  duty  a.s 
such  inspector  of  grain,  or  any  person  who  shall  improperly  in- 
fluence any  inspector  of  grain  in  the  jjerformance  of  his  duty  as 
such  inspector,  shall  he  deemed  guillN'  of  a  inisdeiiieanor,  and 
on  conviction  thereof  shall  be  hned  not  less  than  one  hundred 
(100)  dollars,  nor  more  than  one  thousand  (1000)  dollars,  or 
shall  be  imprisoned  in  the  county  jail  not  less  than  thirty  (30) 
days  nor  more  than  one  (1)  year,  or  both  in  the  discretion  of 
the  court. 

Sec.  32.  Charges  for  inspection  to  be  a  lien.  The  charge  foi' 
the  inspection  and  weighing  of  grain  shall  he  and  constitute  a 
lien  on  grain  so  insjjected,  and  whenever  such  grain  is  in  transit 
the  said  charges  shall  be  treated  as  advanced  charges,  to  be  paid 
by  the  connnon  carrier  in  whose  possession  the  same  is  at  the 
time  of  inspection. 

Sec.  33.  Decision  of  inspector  final  unless  appeal  taken.  The 
decision  of  the  chief  inspector  or  any  of  the  deputy  inspectors 
as  to  grade  of  grain  shall  be  final  and  binding  on  all  parties,  un- 
less an  appeal  is  taken  from  such  decision  as  hereinafter  provided. 

Sec.  34.  Appeals  to  the  railroad  and  warehouse  commissioners. 
In  case  any  owner,  consignee  or  shipper  of  grain,  or  any  ware- 
house manager  shall  be  aggrieved  by  the  decision  of  the  chief 
inspector  or  any  of  his  deputies,  an  appeal  may  be  had  to  the 
railroad  and  warehouse  commissioners,  and  a  decision  of  a  ma- 
jority of  such  commissioners  shall  be  final,  and  the  railroad  and 
warehouse  commissoners  are  authorized  to  make  all  necessary 
rules  governing  such  appeal;  Provided,  That  the  party  appeal- 
ing shall  pay  to  the  chief  inspector  a  sum  not  to  exceed  five  (5) 
dollars  per  case  before  said  case  be  entertained,  which  sum  shall 
be  refunded  in  case  such  case  is  sustained. 

Sec.  35.  (rrain  need  not  go  into  any  public  warehouse.  In  case 
any  owner  or  consignee  of  grain  shall  be  dissatisfied  with  the 
inspection  of  any  lot  of  grain,  or  shall  from  any  cause  desire  to 
receive  his  property  without  its  passing  into  store,  he  shall  be 
at  liberty  to  have  the  same  withheld  from  going  into  any  public 
warehouse  (whether  the  property  may  have  previously  been 


398  MINNESOTA    LAWS. 

consigned  to  such  warehouse  or  not)  by  giving  notice  to  the 
person  or  corporation  in  whose  possession  it  may  be  at  the  time 
of  giving  such  notice;  and  such  grain  shall  be  withheld  from 
going  into  store,  and  delivered  to  him,  subject  only  to  such 
l)ropei-  charges  as  may  be  a  lien  upon  it  prior  to  such  notice — 
the  grain,  in  railroad  cars,  to  be  ixnnoved  therefrom  by  such 
owner  or  consignee  within  twenty-four  (24)  hours  after  such 
notice  has  been  given  to  the  railroad  company  having  it  in  pos- 
session; Provided,  Such  railroad  company  place  the  same  in  a 
l)roper  and  convenient  place  for  unloading;  and  any  person  or 
cori^oration  refusing  to  allow  such  owner  or  consignee  to  receive 
his  grain  shall  be  deemed  guilty  of  com^ersion,  and  shall  be  Ua- 
ble  to  pay  such  owner  or  consignee  double  the  value  of  the  prop- 
erty so  converted.  Notice  that  such  grain  is  not  to  be  delivered 
into  store  may  also  be  given  to  the  proprietor  or  manager  of  any 
warehouse  into  which  it  would  otherwise  have  been  delivered; 
and  if,  after  such  notice,  it  be  taken  into  store  in  such  warehouse, 
the  proprietor  or  manager  of  such  wareliouse  shall  be  liable  to 
the  owner  of  such  grain  for  double  its  market  value. 

Sec.  36.  Direction  of  the  owner  of  grain  must  be  obeyed.  It  shall 
be  unlawful  for  any  proprietor,  lessee,  or  manager  of  any  public 
warehouse  to  enter  into  any  contract,  agreement,  understanding, 
or  combination  with  any  railroad  company  or  other  corpora- 
tion, or  with  any  incUvidual  or  individuals,  b}^  which  the  prop- 
erty of  any  person  is  to  be  delivered  to  any  public  warehouse  for 
storage  or  for  any  other  purpose,  contrary  to  the  direction  of  the 
owner,  his  agent  or  consignee. 

Sec.  37.  "Minnesota  Grades''  to  be  established.  The  railroad 
and  warehouse  commissioners  shall,  before  the  fifteenth  HSth) 
day  of  Septembei-  in  each  year,  establish  a  grade  for  all  kinds  of 
grain  bought  oi'  handled  l)y  any  public  wareliouse  in  the  state, 
which  shall  be  known  as  "Minnesota  Grades";  and  the  grades 
so  established  shall  be  published  in  some  daily  newspaper,  in 
each  of  the  three  places  of  St.  Paul,  Minneapolis  and  Duluth, 
each  day,  for  the  space  of  one  week. 

Sec.  38.  Samples  shall  be  furnished.  It  shall  be  the  duty  of 
the  chief  inspector  of  grain  to  furnish  any  elevator  or  warehouse 
in  this  state  standard  samples  of  grain,  as  established  by  the 


MINNESOTA.  399 

official  inspection,  when  reciuosted  so  to  do  l)y  the  proprietor, 
lessee  or  manager  thereof,  at  the  actual  cost  of  such  samples. 

Sec.  39.  Cummissioriers  to  hare  supervidun  oj  (jrain  busitiess. 
It  will  be  the  duty  of  the  railroad  and  warehouse  commissioners 
to  assume  and  exercise  a  constant  supervision  over  the  grain  in- 
terests of  this  state,  to  supervise  the  handling,  inspection,  weigh- 
ing and  .storage  of  grain;  to  establish  all  necessary  rules  and 
regulations  for  the  weighing,  grading,  inspection  and  appeal  on 
inspection  of  grain,  and  for  the  management  of  the  public  ware- 
houses of  the  state,  as  far  as  such  rules  and  regulations  may  be 
necessary  to  enforce  the  provisions  of  this  act  or  any  law  of  this 
state  in  regard  to  the  same;  to  investigate  all  complaints  of 
fraud  or  oppression  in  the  gi'ain  trade,  and  to  correct  the  same 
as  far  as  it  may  be  in  their  power. 

Sec.  40.  Rules  and  regulations  to  be  published.  Tlie  aforesaid 
rules  and  regulations,  not  being  contrary  to  the  provisions  of 
law,  shall  be  published  by  said  railroad  and  warehouse  commis- 
sioners, in  a  daily  paper  in  St.  Paul,  Minneapolis  and  Duluth,  and 
shall  be  in  force  and  effect  until  the}''  shall  be  changed  or  abro- 
gated by  said  commissioners  in  a  like  public  manner. 

Sec.  41.  All  moneys  collected  shcdl  be  paid  into  state  treasury. 
All  moneys  collected  by  state  grain  inspectors,  weighmasters 
and  other  officers,  as  herem  provided  for,  shall  by  them  be  paid 
into  the  state  treasury. 

Sec.  42.  Duty  of  treasurer.  It  shall  be  the  duty  of  the  treas- 
urer of  the  state  of  Minnesota,  to  receive  all  moneys  aforesaid 
and  all  fines  and  penalties  collected  by  vii-tuc  of  tJiis  act.  and  to 
keep  a  separate  account  of  the  same,  and  to  pay  the  same  on  the 
order  of  the  railroad  and  warehouse  connnissioners,  and  not 
otherwise. 

Sec.  43.  Attorney  general's  duties — County  attorney  to  prose- 
cute. The  attorney  general  of  the  State  of  Minnesota  shall  be 
ex-officio  attorney  for  the  railroad  and  warehouse  commissioners, 
and  shall  give  them  such  counsel  and  advice  as  they  may  from 
time  to  time  require,  and  he  shall  institute  and  ])rosecute  any 
and  all  suits  which  such  railroad  and  warehouse  commissioners 
may  deem  expedient  and  proper  to  institute,  and  he  shall  render 
to  such  railroad  and  warehouse  commissioners  all  counsel,  ad- 


400  MINNESOTA    LAWS. 

vice  and  assistance  necessary  to  carry  out  the  provisions  of  this 
act  according  to  the  true  intent  and  meaning  thereof.  In  all 
criminal  prosecutions  against  a  warehouseman  for  the  violation 
of  an}^  of  the  provisions  of  this  act,  it  sliall  be  the  dut)^  of  the 
county  attorney  of  the  county  in  which  such  prosecution  is 
brought  to  prosecute  the  same  to  a  final  issue. 

Sec.  44.  Grain  may  he  sold  by  sample.  Nothing  in  this  act 
shall  be  so  construed  as  to  prevent  any  person  from  selling  grain 
by  sample,  regardless  of  grades. 

Sec.  45.  Chapters  95  and  99,  Laws  of  1879,  repealed.  Chap- 
ters ninety-five  (95)  and  ninety-nine  (99)  of  the  General  Laws  of 
eighteen  hundred  and  seventy-nine  (1879)  are  hereby  repealed. 

Sec.  46.  ConHicting  laws  repealed.  All  acts  and  parts  of  acts, 
general  or  special,  conflicting  with  this  act  are  hereby  repealed. 

Sec.  47.  Appropriation.  The  sum  of  one  thousand  (1,000) 
dollars,  or  so  nuich  thereof  as  is  necessary  to  carry  out  the  pro- 
visions of  this  act,  is  hereby  appropriated  out  of  any  money  in 
the  state  treasury  not  otherwise  appropriated. 

Sec.  48.  Old  system  to  apply  to  grain  in  store  prior  to  the  passage 
of  this  act.  But  the  provisions  of  this  act  shall  not  change  the 
liability  of  warehousemen  on  grain  now  in  store,  nor  the  in- 
spection thereof;  but  said  inspection  shall  be  had  under  the  same 
system  under  which  it  was  received  into  store. 

Sec.  49.  When  to  take  effect.  This  act  shall  take  effect  and 
be  in  force  after  the  expiration  of  sixty  (60)  days  after  its  pas- 
sage. 

Approved  March  5,  1885. 

Sec.  50.  Making  St.  Cloud  a  terminal  point.  [That  Avhenever 
the  cities  of  St.  Paul,  Minneapolis  and  Duluth  are  named  in  this 
chapter,  the  name  of  St.  Cloud  shall  be  included,  and  the  i)rovi- 
sions  of  said  chapter  shall  be  construed  to  extend  to  said  city 
of  St.  Cloud,  to  the  same  extent  as  to  said  cities  of  St.  Paul, 
Minneapolis  and  Duluth.] 

Amendment  in  brackets  approved  April  20,  1891. 

Sec.  51.  Weighmasters  to  keep  accurate  account  of  all  weighing. 
[All  state  weighmasters  and  assistants  provided  for  by  this  law 
and  the  amendments  thereto  shall  be  required  to  make  true 
weights  under  the  penalties  hereinbefore  provided,  and  in  addi- 


MINNESOTA.  401 

tion  thereto  keep  a  correct  record  of  all  weighing  done  by  them 
at  the  places  hereinbefore  named,  in  which  record  shall  be  entered 
an  accurate  account  of  all  grain  or  other  property  weiglu'd,  or 
the  weighing  of  which  was  supervised  by  them  or  their  assist- 
ants, giving  the  amount  of  each  weighl,  the  iiumixT  (jf  the  car 
or  cars  weighed,  if  any,  the  initial  letter  oi  said  car  or  cars,  place 
where  weighed,  date  of  weighing  and  contents  of  car.] 

Amendment  in  brackets  approved  April  5,  1893. 

Sec.  52.  Weighmasters  to  furnish  certificates  of  weight — Certifi- 
cates to  he  prima  facie  evidence.  [Said  weighmaster  and  assist- 
ants shall  give  upon  demand  to  any  person  or  persons  having 
weighing  done,  a  certificate  under  his  hand  and  scud,  showing 
the  amount  of  each  weight,  number  of  car  or  cars  weighed,  if 
any,  the  initial  of  said  car  or  cars,  place  where  weighed,  date  of 
weighing  and  contents  of  car.  And  it  is  hereby  provided  that 
said  weighmaster's  certificate  shall  be  admitted  in  all  actions, 
either  at  law  or  in  equity,  as  prima  facie  evidence  of  the  facts 
therein  contained,  but  the  effect  of  such  evidence  may  be  re- 
butted by  other  competent  testimony.] 

Amendment  in  brackets  approved  April  5,  1893. 

Chapter  123,  General  Laws,  1897. 
An  Act  to  establish  state  weighing  and  inspection  of  grain  at 
the  city  of  Fergus  Falls  in  the  county  of  Otter  Tail  and  the  city 
of  Winona  in  the  county  of  Winona,  and  making  said  cities  of 
Fergus  Falls  and  Winona  terminal  points,  and  making  all  laws 
of  this  state  that  are  applicable  to  the  weighing  and  inspection 
of  grain  at  the  termmal  points  of  St.  Paul,  Minnea))olis,  Duluth 
and  St.  Cloud,  applicable  to  Fergus  Falls  and  Winona. 

Be  it  enacted  by  the  legislature  of  the  state  of  Minnesota: 
Section  1.  Making  Fergus  Falls  and  Winona  terminal  points. 
The  cities  (city)  of  Fergus  Falls  in  the  county  of  Otter  Tail  and 
the  city  of  Winona,  in  the  county  of  Winona,  are  hereby  made 
and  established  as  terminal  points  for  the  weighing  and  inspec- 
tion of  grain. 

Sec.  2.  All  laws  of   this  state  applying,  governing  and  regu- 
lating the  weighing  and  inspection  of  grain  at  St.  Paul,  Minne- 
36 


402  MINNESOTA    LAWS. 

upolis,  Duluth  and  St.  Cloud  shall  apply,  regulate  and  govern 
the  weighing  and  inspection  of  grain  at  the  cities  of  Fergus 
Falls  and  A\'inona. 

Sec.  3.  Tliis  act  shall  be  in  force  from  and  after  its  passage. 

Approved  April  14,  1897. 

Chapter  30,  General  Laws,  1897. 
An  Act  to  establish  state  weighing  and  inspection  of  grain  at 
the  city  of  Little  Falls  in  the  county  of  Morrison,  and  making 
said  city  of  Little  Falls  a  terminal  pomt,  and  making  all  laws 
of  this  state  that  are  applicable  to  the  weighing  and  inspection 
of  grain  at  the  terminal  jwints  of  St.  Paul  and  Minneapolis, 
Duluth  and  St.  Cloud  applicable  to  Little  Falls. 

Be  it  enacted  by  the  legislature  of  the  state  of  Minnesota  : 

Section  1.  Making  Little  Falls  a  terminal  point.  The  City  of 
Little  Falls,  in  the  County  of  Morrison,  is  hereby  made  and  es- 
tablished a  terminal  point  for  the  weighing  and  inspection  of 
grain. 

Sec.  2.  All  laws  of  this  state  applying,  governing  and  regulat- 
ing the  weighing  and  inspection  of  grain  at  St.  Paul  and  Minne- 
apolis, Duluth  and  St.  Cloud  shall  apj^ly,  regulate  and  govern 
the  weighing  and  inspection  of  grain  at  the  city  of  Little  Falls. 

Sec.  3.  This  act  shall  be  in  force  from  and  after  its  passage. 

Approved  March  2,  1897. 

Chapter  295,  General  Laws,  1895. 
An  Act  to  exempt  the  scales  of  certain  elevators,  mills  and 
railroad  yards  from  the  jurisdiction  of  city  sealers  of  weights 
and  measures. 

Be  it  enacted  by  the  legislature  of  the  state  of  Minnesota  : 
Section  1.  Scales  under  supervision  of  state  (/rain  department. 
That  the  scales  at  all  elevators,  mills  and  railroad  yards  operated 
by  and  under  the  control  of  a  duly  appointed  state  weigher,  and 
which  scales  are  directly  under  the  supervision  of  the  state  grain 
weighing  department,  shall  be  exempt  from  the  jurisdiction  of 
city  sealers  of  weights  und  measures. 


MINNESOTA.  108 

Sec.  2.  All  acts  or  parts  of  acts  iiicousisteut  with  tliis  act  arc 
hereby  repealed. 

Sec.  3.  This  act  shall  take  effect  and  bo  in  forc(!  from  and  aftc^r 
its  passage. 

Approved  April  13,  1895. 

Chapter  30,  General  Laws,  1893. 
An  Act  to  provide  for  the  purchase  of  a  site  and  for  the  erec- 
tion of  a  state  elevator  or  warehouse  at  Duluth  in  this  state  f(jr 
public  storage  of  grain,  and  the  regulation  thereof,  to  i)ublish 
a  market  report,  and  to  appropriate  money  for  that  purpose. 

Be  it  enacted  by  the  legislature  of  the  state  of  Minnesota. 

Sec.  3.  Market  price  of  grain  and  farm  prodiicta,  also  freight 
rates  on  same,  to  be  kept  on  file  in  office  of  commission — Weekly 
market  report.  The  said  commission  shall  keep  on  file  for  pub- 
lic inspection  publications  showing  the  market  price  of  grain 
and  farm  products  in  the  markets  of  Liverpool,  London,  Paris, 
Hamburg,  New  York,  Buffalo,  Quebec,  San  P'rancisco,  Chicago, 
Minneapolis  and  Duluth.  Also  the  freight  rates  between  said 
markets,  either  by  railroad,  lake,  ocean  or  other  means  of  trans- 
portation. They  shall  publish  a  weekly  bulletin  or  market 
report  showing  the  prices  paid  in  said  markets  for  farm  jjrod- 
ucts.  Said  market  report  to  show  the  prices  as  reported  by 
the  publications  received  from  the  other  cities  for  one  week  and 
immediately  prectHJing  the  date  of  said  i)ublication,  as  near  as 
practicable;  also  the  rates  of  freight  betwcHMi  Duhith  and  Minne- 
apolis and  said  markets.  Said  bulletin  to  be  kept  on  file  in  said 
institution  and  in  the  office  of  said  conmiission  in  St.  Paul;  also 
to  be  furnished  by  mail  to  all  persons  who  shall  on  lor  the  saujc 
and  pay  the  i)rice  fixed  by  said  commission,  which  shall  not 
exceed  one  dollar  per  anmnn. 

Sec.  16.  This  act  shall  take  effect  and  be  in  force  from  and 
after  its  passage. 

Approved  April  18,  1893. 

(All  other  sections  of  said  act,  from  section  one  (1)  to  section 
fifteen  (15),  inclusive,  providing  for  the  purchase  of  a  sit<«  and 
for  the  erection  of  a  state  elevator  or  warehouse  at  Duluth.  in 


404  MINNESOTA    LAWS. 

this  state,  for  public  storage  of  grain  and  the  regulation  thereof, 
declared  unconstitutional  by  the  decision  of  the  supreme  court 
of  Minnesota.     See  Rippe  v.  Becker,  56  Minn.  100.) 

Chapter  29,  General  Laws,  1893. 
An  Act  to  provide  for  the  care  and  protection  of  grain  in  cars 
at  the  several  places  designated  by  law  as  terminal  points  wdthin 
the  State  of  Minnesota. 

Be  it  enacted  by  the  legislature  of  the  state  of  Minnesota  : 
Section  1.  Inspectors  to  examine  condition  of  cars  of  grain 
— Inspectors — To  close  and  reseat  cars  after  inspection — Record. 
It  shall  be  the  duty  of  the  chief  inspector  of  grain,  and  of  any 
deputies  as  officials  ser\dng  under  him,  before  opening  the  doors 
of  any  cars  containing  grain  upon  their  arrival  at  any  of  the 
several  places  designated  by  law  as  terminal  points  in  this  state, 
for  the  purpose  of  inspecting  the  same,  to  first  ascertain  the 
condition  of  any  such  car  or  cars,  and  determine  whether  any 
leakages  have  occurred  while  the  said  car  or  cars  were  in  transit ; 
also  whether  or  not  the  end  or  side  doors  are  properly  secured 
and  sealed,  making  a  record  of  such  facts  in  all  cases  and 
recording  the  same  in  a  proper  book  to  be  kept  for  the 
purpose. 

After  such  examination  shall  have  been  duly  made  and  re- 
corded, and  the  inspection  of  such  grain  has  been  made,  it  shall 
be  the  duty  of  the  said  officials  of  the  state  grain  inspection  de- 
partment, above  mentioned,  to  securely  close  and  reseal  such 
doors  as  have  been  opened  by  them,  using  a  special  seal  of  the 
said  state  grain  inspection  department  for  the  purpose.  A 
record  of  all  original  seals  broken  by  said  officials  and  the  time 
when  broken,  also  a  record  of  all  state  seals  substituted  there- 
for and  the  time  when  such  state  seals  were  substituted,  to- 
gether with  a  full  description  of  said  seals,  with  their  numbers, 
shall  be  made  by  the  said  officials. 

Sec.  2.  Police  protection  to  he  furnished  by  railroad  conipanies. 
It  shall  be  the  duty  of  all  railroad  companies  operating  any 
lines  of  railroad  at  the  terminal  points  of  this  state  to  furnish 
ample  and  sufficient  poHce  protection  at  each  and  all  of  their 


MINNKSOl'A.  40.'J 

several  teriiiiiial  yards  ami  on  their  IcniiiiKil  tiacks  to  sccurcl}' 
protect  all  cars  containing  grain,  while  the  same  is  in  their  pos- 
session, pending  transfer  and  delivery  of  same,  and  it  shall  he 
the  duty  of  such  railroad  companies  to  prohibit  and  restrain  all 
unauthorized  persons,  whether  under  the  guise  of  samplers, 
sweepers,  or  under  any  other  pretext  whatevei-,  from  eiilerint; 
of  loitering  in  or  about  their  respective  railroad  yards  or  tracks 
and  from  entering  any  cars  of  grain  undei'  theii"  control,  or  re- 
moving grain  therefrom,  and  shall  employ  and  detail  such  num- 
ber of  watchmen  as  may  be  necessary  for  the  puipose  of  earry- 
mg  out  the  provisions  of  the  wdthin  section. 

Sec.  3.  Wai'ehou-'^einen  at  terminal  point.s  must  protect  cars  re- 
ceived. It  shall  be  the  duty  of  all  warehousemen  operating  and 
controlling  grain  elevators  and  warehouses  at  any  terminal 
point  within  this  state,  and  it  shall  further  be  the  duty  of  all 
persons,  firms  or  corporations  engaged  in  the  manufacture  of 
flour  or  other  grain  products  at  such  terminal  points,  to  furnish 
ample  and  sufficient  protection  to  all  grain  in  cars  which  may 
be  in  their  possession  and  to  joroperly  care  for  all  cars  of  grain 
consigned  to  their  respective  elevators,  warehouses,  mills  or 
manufactories  after  delivery  of  same  has  been  made  by  the 
railroad  companies,  and  in  case  of  shipment  of  grain  in  cars 
from  such  elevators,  warehouses,  mills  or  manufactories,  the 
said  persons  shall  fully  protect  and  care  for  said  cars  of 
grain  until  delivery  of  same  has  been  n^iade  to  the  railroad 
company. 

Sec.  4.  Breaking  seah  a  misdem,eanor — Penalty.  Any  person 
other  than  those  charged  by  s{>ctions  one,  two  and  three  of  the 
within  act  with  the  care  of  the  property  described  lierein  who 
shall  tamper  wMth  or  break  any  seals  placed  upon  such  cai's  of 
grain,  shall  be  deemed  guilty  of  a  misdemeanoi-.  and  shall  be 
punished  by  a  fine  not  less  than  ten  dollars  and  not  exceed- 
ing one  hundred  dollars,  or  by  imprisonment  in  the  county  jail 
not  less  than  ten  days  and  not  exceeding  nint^ty  days  upon 
conviction. 

Sec.  5.  Neglect  to  perform  duties  of  this  act.  If  any  person  or 
persons  mentioned  in  sections  one,  two  and  three  of  the  within 
act  shall  neglect  or  fail  to  carry  out  the  duties  prescribed  for 


4<)(i  MIN^TESOTA    LAWS. 

their  govprnment  in  said  sections,  ho  or  they  shall  be  liable  to 
the  owner  for  tlie  full  aiiiouiit  of  actual  loss  or  damage  which 
said  owner  may  suffer  by  reason  thereof. 

Sec.  6.  Shippers  to  affix  cards — Failure  to  comply.  It  shall 
be  the  duty  of  every  sliipper  oi  grain  b}-  railroad  to  the  terminal 
points  within  this  state  to  fasten  u]K:)n  the  inside  of  the  door  of 
every  car  so  shii)i)('d  by  him,  a  card  u])()n  which  shall  be  given 
the  number  and  initials  of  such  car,  the  date  of  shipment,  and 
the  exact  weight  of  the  grain  in  such  car  as  ascertained  and  de- 
termined by  such  shipper. 

In  case  of  failure  on  the  part  of  any  shipper  to  comply  with 
the  provisions  of  this  section,  the  weight  of  the  grain  in  such 
car  as  ascertained  and  determined  by  the  state  weighmaster  at 
the  terminal  point  shall  be  taken  as  prima  facie  evidence  of  the 
amount  of  gi'ain  in  such  car  contained. 

Sec.  7.  This  act  shall  take  effect  and  be  in  force  from  and 
after  its  passage. 

Approved  April  6,  1893. 

Chapter  148,  General  Laws,  1895. 
An  Act  to  regulate  the  receipt,  storage  and  shipment  of  grain 
at  elevators  and  warehouses  on  the  right  of  way  of  railroads, 
depots  grounds  and  other  lands  used  in  connection  with  such 
line  of  railway  in  the  state  of  Minnesota,  at  stations  and  sidings, 
other  than  at  terminal  points. 

Be  it  enacted  by  the  legislature  of  the  state  of  Minnesota: 
Section  1.  Railroad  elevators  placed  under  railroad  and  ware- 
house commission — Must  he  licensed — License  fees — Revoking 
license.  All  elevators  and  warehouses  in  which  grain  is  re- 
ceived, stored,  shipped  or  handled  and  wliich  are  situated  on 
the  right  of  way  of  any  railroad,  depot  grounds  or  any  lands 
acquired  or  reserved  by  any  railroad  company  in  this  state  to 
be  used  in  connection  with  its  line  of  railway  at  any  station  or 
siding  in  this  state,  other  than  at  terminal  points,  are  hereby 
declared  to  be  public  elevators  and  shall  be  under  the  super- 
vision and  subject  to  the  inspection  of  the  railroad  and  ware- 
house commission  of  the  state  of  Minnesota,  and  shall,  for  the 


MIXXKSOTA.  407 

purposes  of  this  act,  be  known  and  designated  as  public  country 
elevators  or  country  warehouses. 

It  shall  be  unlawful  to  rocoivo,  ship,  store  or  handle  any  grain 
in  any  such  elevator  or  warehouse,  unless  the  owner  or  owners 
thereof  shall  have  produced  a  license  therefor  from  the  state 
railroad  and  warehouse  conniiission,  which  license  shall  be  issued 
for  the  fee  of  one  (1)  dollar  per  year,  and  only  upon  written  ap- 
plication under  oath,  specifying  the  location  of  such  elevator 
or  warehouse  and  the  name  of  the  person,  hrni  or  corporation 
owning  and  operating  such  elevator  or  warehouse  and  the  names 
of  all  the  menbers  of  the  firm  or  the  names  of  all  the  officers  of 
the  corporation  owning  and  operating  such  elevators  or  ware- 
house and  all  moneys  received  for  such  licenses  shall  be  turned 
over  to  the  state  grain  inspection  fund.  Such  license  shall 
confer  upon  the  licc^nsee  full  authority  to  operate  such  ware- 
house or  elevator  in  accordance  with  the  laws  of  this  state  and 
the  rules  and  regulations  prescribed  by  said  conmiission,  and 
every  person,  company  or  corporation  receiving  such  license 
shall  be  held  to  have  accepted  the  provisions  of  this  act,  and 
thereby  to  have  agreed  to  comply  with  the  same. 

If  any  elevator  or  warehouse  is  operated  in  violation  or  in 
disregard  of  the  laws  of  this  state  its  license  shall,  upon  due 
proof  of  this  fact,  after  proper  hearing  and  notice  to  the  licensee, 
be  revoked  by  the  said  railroad  and  warehouse  commission. 
Every  such  license  shall  expire  on  the  thirty-first  (31st)  day 
of  August  of  each  year. 

Sec.  2.  Penalty  for  operating  without  a  license.  No  person, 
firm  or  corporation  shall  in  any  manner  operate  such  public 
country  elevator  or  country  warehouse  without  having  a  license 
as  specified  in  the  preceding  section,  and  any  attempt  to  operate 
such  elevator  or  warehouse  without  such  license  shall  be  deemed 
a  misdemeanor  to  be  punished  as  hereinafter  provided,  and  any 
attempt  to  operate  such  elevator  or  warehouse  in  violation  of 
law  and  without  having  the  license  herein  prescribed,  may  upon 
complaint  of  the  party  aggrieved,  and  upon  comi^laint  of  the 
railroad  and  warehouse  connnission,  be  enjoined  and  restrained 
by  the  district  court  for  the  county  in  wliich  the  elevator  or 
warehouse  in  question  is  situate,  by  temporary  and   j)ermanent 


408  MINNESOTA   LAWS. 

injunction,  conformably  to  the  procedure  in  civil  actions  in  the 
district  court. 

Sec.  3.  Rules  and  regulations.  The  railroad  and  warehouse 
commission  shall  before  the  first  (1st)  of  September  of  each  year, 
and  as  nmch  oftener  as  they  shall  deem  proper,  make  and  pro- 
mulgate all  suitable  and  necessary  rules  and  regulations  for  the 
government  and  control  of  public  country  elevators  and  public 
country  warehouses,  and  the  receipt,  storage,  handling  and 
shipment  of  grain  therein  and  therefrom,  and  the  rates  of  charges 
therefor,  and  the  rates  so  fixed  shall  be  deemed  prima  facie 
responsible  and  proper,  and  such  rules  and  regulations  shall 
be  binding  and  have  the  force  and  effect  of  law;  and  a  printed 
copy  of  such  rules  and  regulations  shall  at  all  times  be  posted 
in  a  conspicuous  place  in  each  of  said  elevators  and  warehouses, 
for  the  free  inspection  of  the  public. 

Sec.  4.  Accounts  of  business  done  by  elevators  to  be  kept — Duties 
in  the  running  of  an  elevator — Warehouseman's  liability  for  de- 
fault in  delivery — Limit  of  charges — Receipts,  how  numbered  and 
issued.  The  party  operating  such  country  elevator  or  country 
warehouse  shall  keep  a  true  and  correct  account  in  writing,  in 
proper  books,  of  all  grain  received,  stored  and  shipped  at  such 
elevator  or  warehouse,  stating  the  weight,  grade  and  dockage 
for  dirt  or  other  cause  on  each  lot  of  grain  received  in  store  for 
sale,  storage  or  shipment,  and  shall,  upon  the  request  of  any 
person  delivering  grain  for  storage  or  shipment,  receive  the  same 
without  discrimination  during  reasonable  and  proper  business 
hours,  and  shall,  upon  request,  deliver  to  such  person  or  his 
principal,  a  warehouse  receipt  or  receipts  therefor  in  favor  of 
such  person  or  his  order,  dated  the  day  the  grain  was  received, 
and  specifying  upon  its  face  the  gross  and  net  weight  of  such 
grain,  the  dockage  for  dirt  or  other  cause,  and  the  grade  of  such 
grain,  conformable  to  the  grade  fixed  by  the  state  railroad  and 
warehouse  commission  and  in  force  at  terminal  points ;  and  shall 
also  state  upon  its  face  that  the  grain  mentioned  in  such  receipt 
or  receipts  has  been  received  into  store  to  be  stored  with  grain 
of  the  same  grade  under  such  inspection,  and  that,  upon  the 
return  of  said  receipt  or  receipts,  and  uj^on  the  payment  or 
tender  of  payment  of  all  lawful  charges  for  receiving,  storing, 


MINNESOTA.  409 

delivering  or  otherwise  handling  said  grain,  which  charges  may 
have  accrued  u[)  to  the  time  ol'  the  return  of  said  receipt  or 
receipts,  such  grain  is  deliverable  to  the  person  named  therein, 
or  his  order,  eith(>r  from  the  elevator  or  warehouse  wh(!re  it  was 
received  for  storage;  or  if  the  owner  so  desires,  in  (juantities  not 
less  than  a  carload  on  track  on  the  same  line  of  railway  at  any 
terminal  point  in  this  state  which  the  ownei-  may  designate, 
where  state  inspection  and  weighing  is  in  foive,  such  grain  to 
be  subject  to  such  official  insj)ection  and  weigiit  as  may  l)e  de- 
termined upon  its  arrival  or  delivery  at  such  terminal  i)()int 
and  the  party  delivering  shall  be  liable  for  the  delivery  of  the 
kind,  grade  and  net  quantity  called  for  by  such  certificate,  less 
an  allowance  not  to  exceed  sixty  (60)  pounds  per  carload  for 
shrinkage  or  loss  in  transit,  if  such  shrinkage  or  loss  occurs. 
On  the  return  or  presentation  of  such  r(;cei))ts  by  the  lawful 
holder  thereof,  properly  indorsed,  at  the  elevator  or  warehouse 
where  the  grain  represented  therein  is  made  deliverable  and 
upon  the  payment  or  tender  of  payment  of  all  lawful  charges, 
as  hereinbefore  provided,  the  grain  shall  be  immediately  deliv- 
ered to  the  holder  of  such  receipt,  and  it  shall  not  be  subject  to 
any  further  charges  for  storage  after  demand  for  such  <leHvery 
shall  have  been  made,  and  cars  are  fiu'nished  by  the  railway  com- 
pany which  the  party  operating  the  elevator  or  warehouse^  siiall 
have  called  for  promptly  upon  the  request  for  shipment  made 
by  the  holder  of  such  receipt  in  the  order  of  the  date  upon  whieh 
such  receipts  are  surrendered  for  shi]:)ment.  The  grain  repre- 
sented by  such  receipt  shall  be  delivered  within  twenty-four  (24) 
hours  after  such  demand  shall  have  been  made  and  cars  or  ves- 
sels or  other  means  of  receiving  the  same  from  the  elevator  or 
warehouse  shall  have  been  furnished. 

If  not  delivered  upon  such  demand  within  twenty-four  (24) 
hours  after  such  car,  vessel  or  other  means  for  receiving  the 
same  shall  have  been  furnished,  the  warehouse  in  default  shall 
be  hable  to  the  owner  of  such  receipt  for  damages  for  such  de- 
fault, in  the  sum  of  one  (1)  cent  per  bushel  and  in  addition 
thereto,  one  (1)  cent  per  bushel  for  each  and  every  day  of  such 
neglect  or  refusal  to  deliver;  Provided,  No  warehouseman  shall 
be  held  to  be  in  default  in  delivering  if  the  property  is  delivered 


410  MINNESOTA    LAWS. 

ill  the  order  demanded  by  holders  of  different  receipts  or  termi- 
nal orders  and  as  rapidly  as  due  diligence,  care  and  prudence 
will  justify. 

Above  sectiou  construed : 

Held  to  be  penal  in  character  and  that  a  strict  compliance 
therewith  was  necessary  to  set  the  statute  in  motion.  A  de- 
mand upon  the  agent's  son  at  the  usual  place  of  business  of 
the  agent  held  not  a  proper  demand.  Ferch  v.  Victoria  Elevator 
Co.,  79  Minn.  416. 

On  the  return  of  said  receipts,  if  shipment  or  delivery  of  the 
grain  at  terminal  point  is  requested  by  the  owner  thereof,  the 
party  receiving  such  grain  shall  deliver  to  said  owner  a  certifi- 
cate in  evidence  of  his  right  to  such  shipment  or  delivery,  stat- 
ing upon  its  face  the  date  and  place  of  its  issue,  the  name  of  the . 
consignor  and  consignee  and  place  of  destination  and  shall  also 
specify  upon  the  face  of  such  certificate  the  kind  of  grain  and 
the  grade  and  net  quantity  exclusive  of  dockage,  to  which  said 
owner  is  entitled  by  his  original  warehouse  receipts  and  by 
official  inspection  and  weighing  at  such  designated  terminal 
point. 

The  grain  represented  by  such  certificate  shall  be  subject  only 
to  such  freight  or  transportation  or  other  lawful  charges  which 
would  accrue  upon  said  grain  from  the  date  of  the  issue  of  said 
certificate  to  the  date  of  actual  delivery,  within  the  meaning 
of  this  act,  at  such  terminal  point. 

All  warehouse  receipts  issued  for  grain  received  and  all  certifi- 
cates shall  be  consecutively  numbered,  and  no  two  receipts  or 
certificates  bearing  the  same  number  shall  be  issued  during  the 
same  year  from  the  same  warehouse,  except  when  the  same  is 
lost  or  destroyed,  in  which  case  the  new  receipt  or  certificate 
shall  bear  the  same  date  and  number  as  the  orignal  and  shall 
be  plainly  marked  on  its  face  "Duplicate."  Warehouse  re- 
ceipts or  certificates  shall  not  be  issued  except  upon  grain  which 
has  actually  been  delivered  in  said  country  warehouse.  Ware- 
house receipts  shall  not  be  issued  for  a  greater  quantity  of  grain 
than  was  contained  in  the  lot  or  parcel  stated  to  have  been  re- 


MINNESOTA.  411 

ceived.  No  receipt  or  certificate  siiall  contain  language  in  any- 
wise limiting  or  modifying  the  liability  of  the  party  issuing  the 
same  as  imposed  by  the  laws  of  this  state,  and  any  such  lan- 
guage, if  inserted,  shall  be  null  and  void. 

A  failure  to  specify  in  such  warehouse  receipts  or  certificates 
the  true  and  correct  grade  and  net  weight,  exclusive  of  dockage, 
of  any  lot  of  grain  to  which  the  owner  of  such  grain  may  be 
entitled  shall  be  deemed  a  misdemeanor  on  the  part  of  the  per- 
son issuing  the  same  for  which,  on  conviction,  he  may  be  pun- 
ished as  hereinafter  provided. 

Sec.  5.  When  grain  to  be  submitted  to  grain  inspector  for  grad- 
ing or  dockage.  In  case  there  is  a  disagreement  between  the 
person  in  the  immediate  charge  of  and  receiving  the  grain  at 
such  country  elevator  or  warehouse,  and  the  person  deUvering 
the  grain  to  such  elevator  or  warehouse  for  storage  or  ship- 
ment, at  the  time  of  such  dehvery,  as  to  the  proper  grade  or 
proper  dockage  for  dirt  oi  otherwise,  on  any  lot  of  grain  deUv- 
ered,  an  average  sample  of  at  least  three  (3)  quarts  of  the  grain 
in  dispute  may  be  taken  by  one  or  both  parties  and  forwarded 
in  a  suitable  sack,  properly  tied  and  sealed,  express  charges 
prepaid,  to  the  chief  inspector  of  grain  at  St.  Paul,  which  shall 
be  accompanied  by  the  request  in  writing,  of  either  or  both  of 
the  parties  aforesaid,  that  the  said  chief  inspector  shall  exam- 
ine the  same  and  report  what  grade  or  dockage  or  both  the  said 
grain  is,  in  Ms  opinion,  entitled  to  and  would  receive,  if  shipped 
to  the  terminal  points  and  subjected  to  official  inspection. 

It  shall  be  the  duty  of  said  chief  inspector,  as  soon  as  practi- 
cable, to  examine  and  inspect  such  sample  of  grain  and  adjudge 
the  proper  grade  or  dockage  or  both,  to  which  said  sample  is. 
in  his  judgment,  entitled  and  which  grain  of  like  quality  and 
character  would  receive  if  shipped  to  the  terminal  points  and 
subjected  to  official  inspection. 

As  soon  as  said  chief  inspector  has  examined,  inspected  and 
adjudged  the  grade  and  dockage,  as  aforesaid,  he  shall  at  once 
make  out  in  writing  and  in  triplicate  a  statement  of  his  judg- 
ment and  finding  in  respect  to  the  case  under  consideration,  and 
shall  transmit  by  mail  to  each  of  the  parties  to  said  disagree- 
ment, a  copy  of  the  said  statement  of  his  judgment  and  finding, 


412  MINNESOTA    LAWS. 

preserving  the  original  togotliei-  with  the  sample  on  file  in  his 
office. 

The  judgment  and  finding  of  the  said  chief  inspector  shall  be 
deemed  conclusive  as  to  the  grade  or  dockage,  or  both,  of  said 
sample,  submitted  for  his  consideration,  as  herein  provided,  as 
well  as  conclusive  evidence  of  the  grade  or  dockage,  or  both, 
that  gram  of  the  same  (juality  and  character  would  receive  if 
shipped  to  the  terminal  i)oints  and  subjected  to  official  in- 
spection. 

Sec.  6.  Complaints  of  unfairness  and  discrimination — How 
dealt  with.  Whenever  complaint  is  made,  in  writing,  to  the 
railroad  and  warehouse  commission,  by  any  person  aggrieved, 
that  the  party  operating  any  country  elevator  or  country  ware- 
house under  this  act  fails  to  give  just  and  fair  weights  and  grades, 
or  is  guilty  of  making  unreasonable  dockage  for  dirt  or  other 
cause,  or  fails  in  any  manner  to  operate  such  elevator  or  ware- 
house fairly,  justly  and  properly,  or  is  guilty  of  any  discrimina- 
tion then  it  shall  be  the  duty  of  the  railroad  and  warehouse 
commission  to  incjuire  into  and  investigate  said  complaint  and 
the  charge  therein  contained,  and  to  this  end  and  for  this  pur- 
pose the  commission  shall  have  full  authority  to  inspect  and 
examine  all  the  books,  records  and  papers  pertaining  to  the 
business  of  such  elevator  or  warehouse  and  all  the  scales,  ma- 
cliinery  and  fixtures  and  appliances  used  therem. 

In  case  the  said  commission  find  the  complaint  and  charge 
therein  contained,  or  any  part  thereof  true,  they  shall  adjudge 
the  same  in  writing  and  shall  at  once  serve  a  copy  of  such  de- 
cision, with  a  notice  to  desist  and  abstain  from  the  error  and 
malpractice  found,  upon  the  party  ofTending  and  against  whom 
the  complaint  was  made,  and  to  afford  prompt  redress  to  the 
party  injured,  and  if  such  party  does  not  desist  and  abstain  and 
does  not  give  the  proper  redress  and  relief  to  the  party  injured, 
it  shall  be  the  duty  of  the  said  commission  to  make  a  special 
report  of  the  facts  found  and  ascertained  upon  the  investiga- 
tion of  said  complaint  and  the  charge  therein  contained,  which 
report  shall  also  include  a  copy  of  the  decision  by  said  commis- 
sion made  therein  to  the  attorney  of  the  county  where  such 
elevator  or  warehouse  is  located  who  shall  institute  and  carry 


MINNESOTA.  413 

on  in  the  name  of  the  coniplaimmt  such  actions,  civil  or  othfT- 
wise,  as  may  be  necessary  and  appropriate  to  reih'css  the  wrongs 
complained  of  and  to  prevent  their  recurrence  in  the  future. 

Sec.  7.  Reports  to  railroad  and  loareJiouse  conmiiasion — Inspec- 
tion of  warehouses.  Any  person,  hrm  or  corporation  operating 
any  country  warehouse  or  country  elevator  under  this  act,  shall 
at  any  and  all  times  when  reciuested  by  the  railroad  and  ware- 
house connnission,  render  and  furnish  in  writing,  under  oath, 
to  the  said  connnission  a  rej^ort  and  itemized  statement  of  all 
grain  received  and  stored  in  or  delivered  or  shipped  from  such 
elevator  or  warehouse  during  the  year  then  last  passed;  such 
statement  shall  specify  the  kind,  grade,  gross  and  net  weight 
of  all  grain  received  or  stored  and  all  grain  delivered  or  shipped, 
and  shall  particularly  specify  and  account  for  all  so-called  over- 
ages that  may  have  occurred  during  the  year.  Such  statement 
and  repoi't  shall  be  made  upon  blanks  and  forms  furnished  and 
prescribed  by  the  railroad  and  warehouse  commission. 

The  commission  shall  cause  every  warehouse  and  the  business 
thereof,  and  the  mode  of  conducting  the  same,  to  be  inspected 
at  such  times  as  the  commission  may  order,  by  one  or  more 
members  of  the  commission  or  liy  some  member  of  the  grain 
inspection  department,  especially  assigned  for  that  purpose, 
who  shall  report  in  writing  to  the  commission  the  result  of  such 
examination;  and  the  property,  books,  records,  accounts,  paj:)ei-s 
and  proceedings,  so  far  as  they  relate  to  their  condition,  ojjera- 
tion  or  management,  shall,  at  all  times  during  business  hours, 
be  subject  to  the  examination  and  inspection  of  such  commission. 

Sec.  8.  Pooling  not  lawful.  It  shall  be  unlawful  for  any  per- 
son, firm  or  corporation  who  shall  operate  any  country  grain 
elevator  or  country  warehouse,  undei-  this  act,  to  enter  into  any 
contract,  agreement,  understanding  or  combination  with  any 
other  person,  firm  or  corporation,  vrho  shall  ojierate  any  other 
country  grain  elevator  or  country  grain  warehouse  under  this 
act,  for  pooling  of  the  earnings  of  business  of  other  rlifferent  and 
competing  grain  elevators  or  warehouses  so  as  to  divide  between 
them  the  aggregate  or  net  proceeds  of  the  earnings  or  business 
of  such  grain  elevators  or  warehouses,  or  any  jjortion  thereof; 
and  in  case  of  any  agreement  for  the  pooling  of  the  earnings  or 


414  MINNESOTA    LAWS. 

husiness  aforesaid,  each  clay  of  its  continuance  shall  be  deemed 
a  separate  offense. 

Sec.  9.  Penalty  for  violatim/  any  of  these  provisions.  Any  per- 
son, firm  or  corporation  who  is  guih}'  of  any  of  the  misdemeanors 
specified  in  this  act,  or  who  is  guilty  of  violating  any  of  the  pro- 
visions of  this  act,  shall,  on  conviction,  be  ])unished  by  a  fine  of 
not  less  than  fifty  (50)  dollars  and  not  more  than  five  hundred 
(500)  dollars  and  in  case  a  natural  ))erson  is  so  convicted,  he 
may  be  imprisoned  until  the  fine  is  paid  or  until  discharged  by 
due  course  of  law ;  and  in  case  a  corporation  is  so  convicted,  the 
fine  may  be  collected  by  execution,  as  judgments  are  collected 
in  civil  actions,  or  the  property  of  the  corporation  may  be  seques- 
tered and  charged  with  the  same  in  approj^riate  legal  proceed- 
ings. 

Sec.  10.  All  laws  and  piirXs  of  laws  inconsistent  with  this  act 
are  hereby  repealed. 

Sec.  11.  This  act  shall  take  effect  and  be  in  force  from  and 
after  the  date  of  its  passage. 

Approved  April  16,  1895. 

Chapter  65,  General  Laws,  1893. 
An  Act  to  provide  for  the  construction  of  side  tracks  and 
switches  upon  the  right  of  way  of  railroad  companies,  to  eleva- 
tors, warehouses,  mills  or  manufactories  located  on  lands  adja- 
cent to  the  right  of  way  of  any  railroad  company  in  this  state. 

Be  it  enacted  by  the  legislature  of  the  state  of  Minnesota: 
Section  1.  Demand  for  side  track  and  sioitch.  The  owner  or 
owners  of  any  elevator,  warehouse  or  mill  of  not  less  than  five 
thousand  bushels  capacity,  located  on  lands  adjacent  to  the 
right  of  way  of  any  railroad  company  in  this  state,  at  or  in  the 
immediate  vicinity  of  any  regular  way  station  of  any  railroad, 
shall  have  the  right  to  demand  of  such  railroad  company  the 
construction  of  a  side  track  over  its  right  of  way  from  such 
elevator,  warehouse,  mill  or  manufactory,  which  said  side  track 
shall  connect  with  a  switch  with  the  main  or  other  side  track 
of  such  railroad,  at  a  point  within  a  reasonable  distance  from 
such  way  station,  and  the  railroad  company  shall  build  said 


MINNESOTA.  416 

side  track  and  make  sucli  comioction  at  its  own  expense.  And 
in  case  no  suitable  place  for  the  erection  of  such  elevatoi',  ware- 
house and  mill  can  be  had,  for  any  cause,  within  the  distance 
occupied  l)y  the  switches,  then  the  railroad  and  warehouse  com- 
mission shall  have  the  right  upon  application  of  either  party  in 
interest,  to  designate  a  place  for  the  erection  of  the  same,  not 
more  than  one  quarter  of  a  mile  beyond  the  end  of  such  switch; 
provided,  however,  that  no  such  ownei*  or  owners  shall  have  the 
right  to  demand,  nor  shall  any  such  railroad  company  be  re- 
quired to  construct  any  sitle  track  under  the  provisions  of  this 
act  which  shall  connect  with  the  main  track  of  such  railroad 
outside  of  the  outside  switches  of  the  yard  of  such  station  or 
siding  as  the  same  may  be  established  at  the  date  of  such  de- 
mand. 

Sec.  2.  To  be  kept  in  repair  by  railroad  company — Agreement 
a.s  to  compensation.  Such  side  track  and  switch  shall  at  all  times 
be  under  the  control  and  management  of,  and  be  kept  in  repair 
and  be  operated  by  the  railroad  company  constructing  or  own- 
ing the  same,  and  used  for  the  business  of  such  elevator,  w^are- 
house,  mill  or  manufactory,  for  whose  use  the  same  may  have 
been  constructed,  upon  such  terms  and  conditions  as  may  be 
agreed  upon  by  the  owner  or  owners  of  such  elevator,  ware- 
house, mill  or  manufactory  and  the  I'ailway  comj^any  building 
such  side  track  and  switch,  or  in  case  of  failure  to  make  such 
agreement  upon  such  terms  and  conditions  as  are  imposed  by 
the  railroad  and  warehouse  commission,  as  provided  in  sec- 
tion three  of  this  act. 

Sec.  3.  Failure  to  agree  upon  location.  In  case  the  owner  or 
owners  of  such  elevatoi",  warehouse,  mill  or  manufactory  and 
the  railroad  company  of  which  the  demand  is  made  cannot 
agree  upon  the  location  of  such  side  track  and  switch,  or  u[)on 
the  terms  and  conditions  upon  which  the  same  shall  be  con- 
structed, maintained  and  operated,  either  party  may  apply  to 
the  railroad  and  warehouse  commission  of  this  state,  which  is 
hereby  authorized  and  required,  after  hearing  the  i)arties,  to 
fix  the  location  and  the  terms  and  conditions  uj)on  which  such 
railroad  company  shall  be  compelled  to  locate,  build,  maiiitaui 
and  operato  such  side  track  and  switcn,  and  the  decision  of  the 


416  MINNESOTA    LAWS. 

railroad  and  warehouse  commission  in  relation  thereto  shall  be 
accepted  and  received  as  an  administrative  order,  made  pursu- 
ant to  section  ten  of  chapter  ten  of  the  General  Laws  of  Minne- 
sota of  1887,  and  shall  be  enforced  as  all  other  administrative 
orders  as  are  in  said  act  provided. 

Sec.  4.  This  act  shall  take  effect  and  be  in  force  from  and 
after  its  passage. 

Approved  March  15,  1893. 

Chapter  64,  General  Laws,  1893. 
An  Act  providing  for  the  erection  of  public  grain  warehouses 
and  grain  elevators,  on  or  near  the  right  of  way  of  railways,  and 
providing  for  condemnation  proceedings  in  connection  therewith. 

Be  it  enacted  by  the  legislature  of  the  state  of  Minnesota: 
Section  1  Application  for  permission,  to  build.  Any  person, 
firm  or  corporation  desirous  of  erecting  and  operating  at  or 
contiguous  to  any  railway  station  or  siding  a  warehouse  or  ele- 
vator for  the  purchase,  sale,  shipment  or  storage  of  grain  for  the 
public  for  hire,  may  make  application  in  writing  containing  a 
description  of  that  portion  of  the  right  of  way  of  said  railroad 
on  which  said  person,  firm  or  corporation  desires  to  erect  a  ware- 
house or  elevator,  and  the  size  and  capacity  of  the  warehouse 
or  elevator  proposed  to  be  erected  and  the  time  for  which  it  is 
desired  to  maintain  said  warehouse  or  elevator  to  the  person, 
firm  or  corporation  owning,  leasing  or  operating  the  railway 
at  such  station  or  siding  for  the  right,  privilege  and  easement 
of  erecting  and  maintaining  for  the  time  stated  in  said  appli- 
cation and  for  reasonable  compensation  such  warehouse  or 
elevator  as  aforesaid  upon  the  right  of  way  appertaining  to 
such  railway  at  such  siding  or  station,  and  within  and  between 
the  outside  switches  of  the  yard  of  such  railway  station  or  sid- 
ing, and  upon  paying  or  securing  in  the  manner  hereinafter  pre- 
scribed reasonable  compensation  for  the  right,  privilege  and 
easement  aforesaid  shall  absolutely  and  unconditionally  be  en- 
titled to  the  same. 

Sec.  2.  Compensation  proposed — Notice  of  acceptance  or  re- 
jection.   The  application  provided  in  the  first  section  of  tliis 


MINNESOTA.  417 

act  shall  also  state  the  amount  the  applicant  deems  a  reasonable 
compensation  for  the  right,  privilege  and  easement  he  desires 
to  acquire,  and  said  applicant  shall  tender  and  pay  to  such  per- 
son, firm  or  corporation  from  whom  such  easement  is  sought 
the  sum  stated  in  such  application,  and  in  case  the  amount  so 
named  and  tendered  is  not  accepted  and  tlu;  parties  cannot 
agree  on  the  amount  to  be  paid  for  such  right,  privilege  and 
easement,  the  same  shall  be  ascertained,  assessed  and  deter- 
mined by  proceedings  in  the  district  court  of  the  county  in  which 
the  station  or  siding  at  which  the  right,  privilege  and  easement 
sought  is  situated,  which  court  is  hereby  given  full  jurisdiction 
in  the  premises  and  shall  at  all  times  be  deemed  open  and  in 
session  for  the  purposes  of  this  act. 

It  shall  be  the  duty  of  any  person,  firm  or  corporation  to 
whom  application  is  made  for  the  right  to  erect  and  maintain 
an  elevator  or  warehouse  under  the  provisions  of  this  act  to 
within  ten  days  after  the  receipt  of  said  application  notify  said 
applicant  in  w^-iting  of  the  acceptance  or  rejection  of  the  amount 
stated  in  said  application  to  be  reasonable  compensation  for 
the  right,  privilege  and  easement  sought  to  be  acquired,  and 
m  case  said  person,  firm  or  corporation  fails  to  notify  the  appli- 
cant within  said  ten  days,  said  person,  firm  or  corporation  shall 
be  deemed  to  have  accepted  said  amount,  and  upon  payment 
or  tender  thereof  said  applicant  shall  be  deemed  to  have  ac- 
quired the  right,  piivilege  and  easement  applied  for. 

Sec.  3.  Proceedings  in  case  of  failure  to  agree.  Proceedings 
in  the  district  court  shall  be  instituted  and  carried  on  as  follows : 
The  party  seeking  the  right,  privilege  and  easement  aforesaid 
shall  pr(!sent  to  and  file  with  the  district  court  a  petition  in 
writing,  and  under  oath  specifying  and  describing  the  right, 
privilege  and  easement  sought  and  the  time  for  which  the  same 
is  sought  and  the  fact  that  the  parties  to  the  proceedings  are 
unable  to  agree  upon  the  amount  of  compensation  therefor. 
A  copy  of  the  application  for  such  privilege  shall  be  attached 
to  said  petition  and  thereupon  it  shall  at  once  be  the  duty  of 
the  court,  by  its  order  in  writing,  to  fix  upon  a  place  and  a  time 
not  more  than  thirty  days  thereafter  where  anil  when  the  court 
will  try,  ascertain,  assess  and  determine  the  amount  of  such 
27 


418  MINNESOTA   LAWS. 

compensation,  a  certified  copy  of  which  order,  at  least  twenty 
days  before  the  time  so  fixed  upon,  shall  be  served  upon  the 
party  from  whom  the  right,  privilege  imd  easement  is  sought, 
as  summons  are  served  in  civil  actions  of  said  court,  and  such 
service  when  made  shall  be  ample  notice  to  and  sunnnons  for 
the  party  so  served  to  appear  and  join  in  the  proceedings  and 
shall  be  ample  to  give  the  court  full  juriscUction  over  the  party 
against  whom  the  proceedings  are  instituted  and  the  property 
involved  in  the  proceedings. 

Sec.  4.  Trial  hij  judge  or  jury — Findings  of  court  or  jury — 
Appeal  to  supreme  court — Costs  and  disbursements.  At  the  time 
and  place  so  fixed  for  ascertaining,  assessing  and  determining 
the  compensation  aforesaid  the  court  shall  immediately  pro- 
ceed to  try  said  matter,  without  a  jury,  if  the  parties  consent, 
and  if  they  do  not  consent  and  if  the  time  and  place  fixed  for 
said  hearing  is  at  a  general  or  special  term  of  said  court  where 
a  petit  jury  has  been  summoned,  the  court  shall  proceed  to  the 
hearing  of  such  matter  with  a  jury  selected  and  sworn  from  the 
panel  present  at  said  term,  in  the  same  manner  as  jurors  are 
selected  in  civil  actions,  and  if  the  regular  panel  is  exhausted 
before  a  jury  is  secured  talesmen  may  be  summoned.  In  case 
said  proceedings  are  made  returnable  at  any  other  time  than 
at  a  term  where  a  petit  jury  shall  have  been  summoned  the 
court  shall  make  an  order  requiring  the  selection  of  twenty- 
four  jurors  from  those  returned  by  the  county  commissioners, 
which  jury  shall  be  drawn  and  selected  in  the  same  manner 
provided  by  law  for  the  drawing  of  jurors  for  general  terms  of 
the  district  court,  and  from  the  jurors  so  returned  a  jury  shall 
be  selected  the  same  as  in  civil  actions  and  the  trial  shall  pro- 
ceed after  the  manner  of  trials  in  civil  actions  and  the  court  or 
jury,  as  the  case  may  be,  shall  find  and  assess  compensation 
both  in  the  form  of  an  annual  rental  and  in  the  form  of  a  gross 
sum  for  the  right,  privilege  and  easement  sought,  and  imme- 
diately after  the  finding  or  verdict  has  been  made  the  party 
against  whom  the  proceedings  have  been  taken  shall  elect 
whether  to  receive  the  annual  rental  or  the  gross  sum  found, 
and  in  case  such  election  is  not  made  by  this  party  then  the 
other  party  to  the  proceedings  may  make  such  election,  and 


MINNESOTA,  4]<« 

after  election  is  made  as  aforesaid  judgment  shall  be  rendered, 
adjudging,  among  other  things,  that  upon  the  payment  of  the 
gross  sum  found,  or  the  annual  rental  found,  yearly  in  advance, 
as  the  case  may  be,  the  party  instituting  the  proceedings  shall 
be  entitled  to  the  right,  privilege  and  easement  of  erecting  and 
maintaining  the  elevator  or  warehouse  asked  foi-  in  the  appli- 
cation and  petition  aforesaid  and  for  the  time  therein  specified ; 
and  thereupon  the  party  in  whose  favor  said  judgment  is  ren- 
dered shall  be  entitled  to  a  writ  of  execution  in  proper  form  to 
immediately  invest  such  party  with  the  right,  privilege  and 
easement  aforesaid. 

In  case  the  annual  rental  is  elected  the  same  shall  be  paid 
yearly  in  advance,  and  if  not  so  paid  after  thirty  days'  default 
the  right,  privilege  and  easement  aforesaid  shall  be  absolutely 
forfeited.  Within  thirty  days  after  the  entry  of  said  judgment 
as  hereinbefore  provided,  but  not  later,  an  appeal  may  be  taken 
by  either  party  to  the  supreme  court,  but  such  appeal  shall  not 
stay  or  hinder  the  use  or  enjoyment  to  the  fullest  extent  of 
the  right,  privilege  and  easement  asked  for  by  the  petition  and 
conferred  by  the  judgment,  if  the  party  instituting  the  pro- 
ceedings shall  make  and  file  a  bond  with  sureties,  to  be  ap- 
proved by  the  court,  in  an  amount  double  the  gross  sum  or 
annual  rental,  conditioned  to  pay  such  sum  or  rental  and  to 
abide  and  satisfy  any  judgment  the  supreme  court  may  render 
in  the  premises. 

Costs  and  disbursements  as  in  civil  actions  shall,  in  each 
court,  be  paid  by  the  unsuccessful  party.  If  the  findings  of  the 
court  or  jury  is  for  a  less  or  the  same  amount  as  tendered  by 
the  petitioner  before  instituting  the  proceedings,  then  the  peti- 
tioner shall  be  deemed  the  successful  party  ;  but  if  the  amount 
found  is  larger  than  the  sum  tendered,  then  the  petitioner  shall 
be  deemed  the  unsuccessful  party.  In  the  supreme  court,  if 
the  judgment  or  order  appealed  from  is  reversed  or  modified, 
the  appellant  shall  be  deemed  the  successful  party;  but  if  the 
judgment  or  order  appealed  from  is  affirmed,  the  respondent 
shall  be  deemed  the  successful  party. 

Sec.  5.  To  he  'public  elevators  and  warehouses.  All  elevators 
and  warehouses  erected  and  maintained  under  the  provisions  of 


420  MINNESOTA     LAWS. 

this  act  shall  be  deemed  public  ele\  atois  and  public  warehouses 
and  shall  be  subject  to  legislative  control  and  shall  be  kept  open 
tor  business  for  the  public  for  reasonable  business  hours  from 
the  fifteenth  day  of  September  in  each  calendar  year  to  the 
fifteenth  day  of  January  in  each  succeeding  calendar  year. 
Any  person,  firm  or  corporation  who  fails  to  comply  with  the 
provisions  of  this  section  shall  forfeit  the  rights,  privileges  and 
easements  acquired  under  this  act. 

Sec.  6.  Erection  of  elevators  to  commence  ivithin  sixty  days. 
Any  persons,  firms  or  corporations  avidling  themselves  of  the 
provisions  of  this  act  shall,  within  sixty  days  after  the  amount 
to  be  paid  for  the  easement  acquired  thereunder  is  finally  de- 
termined by  agreement  or  by  proceedings  in  court,  commence 
the  erection  of  the  warehouse  or  elevator  stated  in  the  applica- 
tion referred  to  in  section  one,  and  complete  the  same  within 
ninety  days  thereafter,  and  in  case  of  failure  to  comply  with 
the  provisions  of  this  section  they  shall  be  deemed  to  have 
abandoned  the  right,  privilege  and  easement  acquired,  and  the 
part  or  portion  of  the  railroad  right  of  way  described  in  their 
application  shall  be  subject  to  selection  by  other  applicants 
who  may  desire  to  avail  themselves  of  the  provisions  of  this 
act. 

Sec.  7.  This  act  shall  take  effect  and  be  in  force  after  the 
first  day  of  May,  A.  D.  1893. 

Approved  April  8,  1893. 

Chapter  73,  Laws,  1879. 

An  Act  10  prevent  fraud  by  coloring  grain. 

Section  3e.  Grain  not  to  he  colored.  No  person  shall  subject, 
or  procure  to  be  subjected,  any  barley  or  other  grain,  to  fumi- 
gation by  sulphur  or  other  material,  or  to  any  other  chemical 
process  affecting  the  color  of  such  barley  or  grain. 

Sec.  3/.  Sale  of  colored  (jrain  forbidden.  No  person  shall  sell, 
or  offer  for  sale,  any  barley  or  other  grain  which  shall  have  been 
subjected  to  fumigation  or  other  process  mentioned  in  the  last 
section,  knowing  the  same  to  have  been  so  subjected. 

Sec.  Sg.  Penaltij  Any  person  violating  the  provisions  of  this 
act,  shall,  upon  conviction  thereof,  be  punished  by  a  fine  not 


MINNESOTA.  421 

exceeding  five  hundred  (500)  dollars,  or  iniprisonuient,  not  ex- 
ceeding one  (1)  yeai"  in  tlie  state  prison,  or  both  such  fine  and 
imprisonmont,  and  shall  be  liable  to  treble  the  damages  sus- 
tained by  any  person  injured  by  such  violation.  (1879,  chap.  73, 
sees.  1,  2,  3.) 

WEIGHTS  AND  MEASURES. 
General  Statutes,  1878,  Chapter  21. 

Section  1.  Standard  weujhts  and  measures.  The  standard 
weights  and  measures  received  from  the  secretary  of  state  of 
the  United  States,  and  all  scalebeanis,  weights  and  measures 
owned  by  this  state,  shall  be  deposited  in  the  office  of  the  state 
treasurer,  who  shall  receive  and  preserve  the  same. 

Sec.  2.  State  treasurer  to  be  sealer  of  weights,  etc.  The  state 
treasurer  shall  be  the  sealer  of  weights  and  measures  for  the 
state.  He  shall  try  and  prove  by  said  standards  all  weights 
and  measures,  scales  or  beams  sent  or  brought  to  him  for  that 
purpose  by  any  county  sealer,  and  shall  seal  such  when  f(jund 
to  be  accurate,  by  stamping  u})()ii  the  letters  "Min."  with  a 
seal  he  shall  have  and  keep  for  that  purpose. 

Sec.  3.  Treasurer  to  be  sealer  of  each  county.  The  treasurer  of 
each  county  shall  be  the  sealer  of  weights  and  measures  for  the 
county.  He  shall  procure,  at  the  expense  of  the  county  (if  not 
already  provided),  a  full  set  of  weights  and  measures,  scales 
and  beams,  which  he  shall  cause  to  be  tried,  proved  and  sealed 
by  the  state  standard,  and  certified  by  the  state  treasurer;  and 
the  county  treasurer  for  the  time  being,  one  in  every  five  (5) 
years  from  the  first  (1st)  day  of  January,  A.  D.  one  thousand 
eight  hundred  and  sixty-five  (1S65),  shall  cause  the  standard 
in  his  keeping  to  be  tried,  proved  and  sealed  by  the  state  stand- 
ards under  the  direction  of  the  state  treasurer.  Such  weights 
and  measures,  when  so  sealed  and  certified,  shall  be  deposited 
in  the  office  of  the  county  treasurer  as  the  county  standard."^. 
by  which  he  shall  try  and  prove  all  scalebeams.  steelyards, 
weights  and  measures  brought  to  him  for  that  purpose,  and  shall 
seal  such,  when  found  to  be  accurate  by  stamping  upon  them 
the  letters  "Min."  with  a  seal  he  shall  have  and  keep  for  that 


422  MINNESOTA    LAWS. 

purpose.  And  for  each  trying  and  proving,  whether  sealed  or 
not,  he  shall  receive  a  fee  of  five  (5)  cents  for  every  scalebeam, 
steelyard,  weight  or  measure. 

Sec.  4.  Deputy  sealers  of  weights  and  measures.  The  county 
treasurer  of  each  organized  county  shall  have  power  to  appoint 
in  writing  a  deputy  sealer  of  weights  and  measures  for  each 
railroad  station  and  wheat  market  in  his  county,  each  of  which 
appointments  shall  be  recorded  in  the  office  of  the  register  of 
deeds,  and  thereupon  each  of  said  deputies  shall  have  all  the 
powers  and  shall  be  competent  to  perform  all  the  duties  of  such 
office,  and  shall,  in  case  of  willful  neglect  or  refusal  to  faithfully 
discharge  the  duties  required  of  him  by  law,  be  punished  in 
accordance  with  the  provisions  of  this  act  relating  to  the  office 
of  sealer  of  weights  and  measures.  (As  amended  1874,  chap.  76, 
sec.  1.) 

Sec.  11.  Weights  and  measures — Penalty  for  using  not  proved 
and  sealed,  etc. — Sealer  or  deputy  to  examine  and  test  weights  and 
measures  when  so  requested— Fines.  All  persons  engaged  in  any 
business,  trade  or  occupation,  requiring  the  use  of  weights  or 
measures,  shall  cause  to  be  tried,  proved  and  sealed  by  the 
sealer  of  weights  and  measures,  in  their  respective  counties, 
all  scalebeams,  steelyards,  weights,  or  measures,  used  by  them 
in  buying  or  selling  any  goods,  wares,  merchandise,  grain  or 
other  commodities.  If,  after  the  expiration  of  three  months 
from  the  passage  of  this  act,  any  person  shall  buy,  sell  or  dispose 
of  any  goods,  wares,  merchandise,  grain  or  other  commodities 
by  any  scalebeams,  steelyard,  weight  or  measure,  not  proved 
and  sealed  in  accordance  with  the  provisions  of  the  law  to  which 
this  is  amendatory,  or  shall  fraudulently  buy,  sell  or  dispose  of 
any  goods  or  commodities,  wares,  grain  or  merchandise,  by  any 
scalebeam,  steelyard,  weight  or  measure  that  has  been  sealed, 
but  is  unjust,  shall  be  deemed  guilty  of  a  misdemeanor,  and, 
upon  conviction  thereof  by  any  court  liaving  competent  juris- 
diction, shall  be  fined  not  less  than  five  (5),  nor  more  than  one 
hundred  (100)  dollars;  and,  upon  neglect  or  refusal  to  pay  such 
fine  and  the  costs  of  prosecution,  the  court  before  whom  the 
accused  shall  have  been  tried,  shall  commit  him  to  the  county 
jail,  until  such  fine  and  costs  are  paid,  or  he  is  discharged  by 


MINNESOTA.  423 

due  course  of  law.  And  for  the  purpo.se  of  enforcing  the  law; 
it  shall  be  the  duty  of  the  sealer  of  weights  and  measures,  or 
his  deputy,  upon  the  written  request  of  any  aggrieved  person; 
and  upon  the  payment  to  him  in  advance  by  such  person,  the 
sum  of  one  (1)  dollar,  and  the  Curt  her  sum  of  twenty  (20)  cents 
per  mile  for  going  and  returning,  as  travelling  expenses,  to  ex- 
amine and  test  any  weights  or  measures  used  within  his  county, 
whether  the  same  shall  have  been  before  tested,  proved  and 
sealed  or  not,  at  any  time  when  called  upon,  and  without  previ- 
ous notice  to  the  person  or  party  com]:)lained  of.  And  if  such 
sealer  of  weights  and  measures,  or  any  deputy  sealer  of  weights 
and  measures,  shall,  directly  or  indirectly,  give  previous  notice 
or  information  to  the  party  complained  of,  of  such  examina- 
tion, in  any  manner  whatever,  he  shall  be  deemed  guilty  of  a 
misdemeanor,  and  upon  conviction  thereof,  shall  be  punished 
by  a  fine  of  not  less  than  fifty  (50),  nor  more  than  one  hundred 
(100)  dollars,  or  by  imprisonment  in  the  county  jail  for  not  less 
than  thirty  (30),  nor  more  than  ninety  (90)  days,  or  by  both 
fine  and  imprisonment,  in  the  discretion  of  the  court.  All  fines 
collected  under  the  provisions  of  this  act  shall  be  paid  over  to 
the  county  treasurer  for  the  benefit  of  the  school  fund  of  the 
county  where  the  action  is  brought.  (As  amended  1874,  chap. 
76,  sec.  3.) 

Sec.  12.  Neglect  to  procure  weights  and  measures — Penalty. 
If  the  treasurer  of  any  county,  or  the  sealer  of  weights  and 
measures  of  any  township,  neglects  to  procure  (if  not  already 
provided)  a  set  of  weights  and  measures  for  such  county  or 
township,  in  compliance  with  the  provisions  of  this  chapter, 
he  shall,  upon  conviction  thereof  by  any  court  of  competent 
jurisdiction,  forfeit  a  sum  not  exceeding  one  hundred  (100)  dol- 
lars to  the  use  of  the  county. 

Sec.  13.  Action  against  sealer,  hoic  instituted.  No  action  shall 
be  commenced  against  any  county  or  township  sealer  for  neg- 
lecting to  procure  the  sets  of  weights  and  measures  as  required 
by  law,  until  the  person  proposing  to  bring  such  action  gives 
such  sealer  notice  in  writing  of  his  intention  to  commence  such 
action,  at  least  twenty  (20)  days  prior  thereto.  And  if  such 
weights  and  measures  are  provided  in  accordance  with  the  re- 


424  MINNESOTA    LAWS. 

quirements  of  law,  within  twenty  (20)  days  from  such  notice, 
then  such  action  shall  not  be  commenced. 

(Only  such  sections  which  pertain  to  measures  and  weights 
of  grain  are  included  in  foregoing  chapter.) 

Chapter  31,  General  Laws,  1897. 
An  Act  to  amend  section  nine  (9)  of  chapter  twenty-one  (21) 
of  the  General  Statutes  of  eighteen  hundred  and  seventy-eight 
(1878),  as  amended  by  chapter  .twenty-two  (22)  of  the  General 
Laws  of  eighteen  hundred  and  eighty-seven  (1887)  and  by  chap- 
ter one  hundred  and  nine  (109)  of  the  General  Laws  of  eighteen 
hundred  and  ninety-three  (1893),  relating  to  weights  and  meas- 
ures. 

Be  it  enacted  by  the  legislature  of  the  state  of  Minnesota  : 
Section  1.  That  section  nine  (9)  of  chapter  twenty-one  (21) 
of  the  General  Statutes  of  one  thousand  eight  hundred  and 
seventy-eight  (1878),  as  amended  by  chapter  twenty-two  (22) 
of  the  General  Laws  of  one  thousand  eight  hundred  and  eighty- 
seven  (1887)  and  by  chapter  one  hundred  and  nine  (109)  of 
the  General  Laws  of  one  thousand  eight  hundred  and  ninety- 
three  (1893)  be  and  the  same  is  hereby  amended  so  as  to  read 
as  follows: 

"Sec.  9.  Weights  to  apply  on  various  commodities — Penalty. 
Whenever  any  of  the  following  articles  shall  be  contracted  for 
or  sold  or  delivered,  and  no  special  contract  or  agreement  shall 
be  made  to  the  contrary,  the  weight  avoirdupois  per  bushel 
shall  be  as  follows,  to-wit:  Apples,  green,  fifty  (50)  pounds;  ap- 
ples, dried,  twenty-eight  (28)  pounds ;  beans,  sixty  (60)  pounds ; 
barley,  forty-eight  (48)  pounds;  buckwheat,  fifty  (50)  pounds; 
beets,  fifty  (50)  pounds;  blue  grass  seed,  fourteen  (14)  pounds; 
blueberries,  forty-two  (42)  pounds ;  broom  corn  seed,  fifty-seven 
(57)  pounds;  corn,  shelled,  fifty-six  (56)  pounds;  corn,  in  ear, 
seventy  (70)  pounds;  clover  seed,  sixty  (60)  pounds;  carrots, 
forty-five  (45)  pounds;  charcoal,  twenty  (20)  pounds;  cran- 
berries, thirty-six  (36)  pounds;  currants,  forty  (40)  pounds; 
gooseberries,  forty  (40)  pounds;  hemp  seed,  fifty  (50)  pounds; 
Hungarian  grass  seed,  forty-eight  (48)   pounds;  millet,   forty- 


MINNESOTA.  425 

eight  (48)  pounds;  oats,  thirty-two  (32)  pounds;  onions,  fifty- 
two  (52)  pounds;  orchard  grass  seed,  fourteen  (14)  pounds; 
peas,  sixty  (60)  pounds;  Irish  potatoes,  sixty  (60)  pounds; 
sweet  potatoes,  fifty-five  (55)  poiuids;  parsnips,  forty-two  (42) 
pounds;  peaches,  dried,  twenty-eight  (28)  pounds;  phistering 
hair,  washed,  four  (4)  pounds;  plastering  hair,  unwashed,  eight 
(8)  pounds;  rape  seed,  fifty  (50)  pounds;  red  top  seed,  fourteen 
(14)  pounds;  rutabagas,  fifty-two  (52)  pounds;  rye,  fifty-six  (56) 
pounds;  sorghum  seed,  fifty-seven  (57)  pounds;  timothy  seed, 
forty-five  (45)  pounds;  wheat,  sixty  (60)  pounds;  coal,  eighty 
(80)  pounds;  provided,  that  if  coal  be  sold  by  the  ton  the  weight 
thereof  shall  be  two  thousand  (2,000)  pounds. 

Whenever  any  wood  shall  l)e  contracted  for  or  sold  or  deliv- 
ered, and  no  special  contract  or  agreement  shall  be  made  to  the 
contrary,  the  measurement  per  cord  shall  be  one  hundred  and 
twenty-eight  (128)  cubic  feet.  And  whoever  in  buying  any  of 
said  articles  shall  take  any  greater  number  of  pounds  or  cubic 
feet  thereof  to  the  bushel,  ton  or  cord,  as  the  case  may  be,  or 
in  selling  any  of  said  articles  shall  give  any  less  number  of 
pounds  or  cubic  feet  thereof  to  the  bushel,  ton  or  cord,  as  the 
case  may  be,  than  is  herein  allowed  and  specified,  except  when 
expressly  authorized  so  to  do  by  special  contract  or  agreement 
to  that  effect,  shall  be  deemed  guilty  of  a  misdemeanor  and  shall 
be  punished  by  a  fine  of  not  less  than  ten  (10)  dollars,  nor  more 
than  one  hundred  (100)  dollars,  or  by  imprisonment  in  the 
county  jail  for  not  more  than  ninety  (90)  days. 

Sec.  2.  This  act  shall  take  effect  and  be  in  force  from  and 
after  its  passage. 

Approved  March  5,  1897. 

Chapter  199,  General  Laws,  1899. 
An  Act  establishing  a  board  of  appeals  for  the  inspection  of 
grain,  and  prescribing  its  duties. 

Be  it  enacted  by  the  legislature  of  the  state  of  Minnesota : 
Section.  1.  The  governor  shall  appoint  six  (6)  suitable,  com- 
petent  persons,   on  or  before  July  fifteenth   (15th),  eighteen 
hundred  and  ninety-nine  (1899),  after  the  passage  of  this  act, 


426  MINNESOTA    LAWS. 

three  (3)  of  whom  sliall  constitute  a  board  of  appeals  for  the 
inspection  of  grain  at  Minneapolis,  antl  the  other  three  (3)  to 
constitute  a  similar  board  at  Duluth,  each  respective  board  to 
consist,  so  far  as  may  be,  of  one  (1)  practical  or  representative 
producer  of  grain,  one  (1)  practical  or  representative  grain  com- 
mission merchant,  and  one  (1)  practical  or  representative  grain 
merchant,  exporter  or  miller;  not  more  than  two  (2)  members 
of  either  of  said  boards  of  appeals  shall  belong  to  the  same 
political  party,  whoso  terms  of  office  shall  commence  Angus'  first 
(1st),  eighteen  hundred  and  ninety-nine  (1899),  and  who  shall 
hold  their  office  for  a  period  of  two  (2)  years,  and  until  their 
successors  are  appointed  and  qualified. 

Every  two  (2)  years  thereafter,  and  within  thirty  (30)  days 
prior  to  the  expiration  of  their  terms  of  office,  the  governor  shall 
appoint  six  (6)  such  suitable,  competent  persons,  to  succeed 
those  whose  terms  will  ex{)ire  on  August  first  (1st),  who  shall 
hold  their  office  for  two  (2)  years,  and  until  their  successors  are 
appointed  and  qualified. 

Any  vacanc}'  which  shall  occur  in  the  office  of  any  member 
of  said  respective  boards  of  appeals  shall  be  tilled  by  the  gov- 
ernor for  the  remainder  of  the  term,  when  a  successor  shall  be 
appointed  for  the  full  term  of  two  (2)  years. 

The  governor  shall  have  power,  in  his  discretion,  to  remove 
from  office  any  member  of  said  respective  boards  of  appeals 
at  any  time,  and  fill  vacancies  thus  created  by  the  appointment 
of  any  suitable  person  or  persons. 

Sec.  2.  In  all  matters  involving  doubt  on  the  part  of  any 
grain  inspector  as  to  the  proper  grade  of  an}^  lot  of  grain  under 
the  standard  or  rules  of  inspection,  or  in  case  any  owner,  con- 
signee or  shipper  of  grain,  or  any  warehouse  manager  shall  be 
dissatisfied  with  the  decision  of  the  chief  inspector  or  any  of 
his  chief  deputy  inspectors,  or  other  inspectors,  an  appeal  may 
be  made  to  the  said  board  of  apjoeals,  in  the  disti'ict  where  the 
inspection  was  first  made,  and  a  decision  of  a  majority  of  the 
said  board  of  appeals  shall  be  final.  The  railway  and  ware- 
house commissioners  are  authorized  to  make  all  necessary  rules 
governing  such  appeals  and  to  fix  the  fees  for  the  same.  All 
notices  requiring  the  services  of  the  board  of  appeals  shall  be 


AHNNESOTA.  427 

filed  in  the  office  of  the  chief  deputy  inspector,  in  wliose  dis- 
trict the  grievance  or  dispute  arises,  who  shall  in  tuiii  dehver 
the  same  promptly  to  said  board. 

Provided,  however,  that  the  party  appealing  shall  pay  to  the 
chief  deputy  inspector,  with  whom  he  serves  notice  of  appeal, 
a  sum  not  to  exceed  one  (1)  dollar  per  case  before  said  appeal 
be  entertained,  which  sum  shall  be  refunded  should  such  appeal 
be  sustained. 

Sec.  3.  The  entire  six  (6)  members  constituting  the  two  (2) 
boards  of  appeals  shall  meet  together,  or  a  majority  of  said 
six  (6)  members,  not  later  than  September  fifteenth  (loth) 
each  year,  and  jjrescribe  or  designate  standards  for  grades, 
and  when  grades  are  so  prescribed,  designated  and  published, 
the  same  shall  not  be  changed  during  the  crop  year,  or  from 
one  annual  meeting  until  the  next,  except  on  approval  of  at 
least  five  (5)  members  of  the  two  (2)  joint  boards. 

Sec.  4.  It  shall  be  the  duty  of  either  ]:)ranch  of  the  board  of 
appeals,  when  of  the  unanimous  opinion  that  any  inspector  is 
incompetent,  indifferent,  intemperate  or  untrustworthy,  to  re- 
port such  fact  to  the  railway  and  warehouse  commission. 

Sec.  5.  Either  branch  of  the  board  of  appeals  shall  hear,  and 
it  is  hereby  made  the  duty  of  either  branch  to  whom  an  appeal 
shall  be  made,  to  hear  and  determine  all  (juestions  at  issue  as 
to  grades  of  grain,  made  by  any  inspector,  or  made  against  any 
public  country  warehouse.  All  such  appeals  shall  be  marie  to 
either  branch  of  the  board  of  appeals,  hereby  created  in  sec- 
tion one  (1)  of  this  act. 

Sec.  6.  Each  of  the  members  of  the  said  board  of  appeals 
shall,  before  entering  upon  the  duties  of  their  office,  take  an 
oath  of  office  as  in  the  case  of  other  state  officers,  and  shall 
execute  a  bond  in  the  penal  sum  of  five  thousand  (5.000)  dollars, 
to  the  state  of  Minnesota,  v/ith  good  and  sufficient  sureties,  to 
be  approved  by  the  governor,  conditioned  that  they  will  faith- 
fully and  impartially  discharge  the  duties  of  their  office,  accord- 
ing to  law,  such  bonds  to  be  filed  with  the  secretary  of  state. 

The  sureties  required  by  this  section  shall  not  be  interested 
in,  nor  connected  with  any  elevator,  or  grain  commission  busi- 
ness, firm  or  corporation,  and  surety  bonds  may  be  received 


428  MINNESOTA    LAWS. 

from  any  surety  company,  approved  by  the  governor,  which 
is  authorized  to  do  business  in  this  state. 

No  member  of  such  board  of  appeals  shall  be  a  member  of  any 
board  of  trade  or  other  grain  exchange  or  grain  firm,  nor  shall 
he  in  any  way  be  engaged  in,  or  interested  in  the  business  of 
buying  or  selling  grain. 

Sec.  7.  The  salaries  of  the  members  of  the  said  boards  of  ap- 
peals shall  be  fixed  by  the  railway  and  warehouse  commissioners 
by  consent  of  the  governor,  and  shall  be  paid  from  the  grain 
inspection  fund,  and  all  necessary  expenses  incurred  in  carrying 
out  the  provisions  of  this  act  shall  be  paid  out  of  the  said  grain 
inspection  fund,  upon  the  order  of  the  railway  and  warehouse 
commissioners. 

Sec.  8.  All  acts  or  parts  of  acts  inconsistent  herewith  are 
hereby  repealed. 

Sec.  9.  This  act  shall  take  effect  and  be  in  force  from  and  after 
its  passage. 

Approved  April  13,  1899. 

Chapter  157,  General  Laws,  1901. 
An  Act  to  establish  state  inspection  and  weighing  of  grain 
at  country  points,  and  making  such  country  points  terminal 
points  as  far  as  relates  to  such  service,  and  making  the  provi- 
sions of  chapter  144,  General  Laws  of  1885,  being  "An  act  to 
regulate  warehouses,  insi)ection,  weighing  and  handling  of  grain, 
applicable  to  such  country  terminal  points." 

Be  it  enacted  by  the  legislature  of  the  state  of  Minnesota: 
Section  1.  That  upon  proper  application  to  the  railroad  and 
warehouse  commissioners  of  the  state  of  Minnesota  by  the 
owner  or  manager  of  an  elevator,  warehouse  or  mill,  located  out- 
side of  St.  Paul,  Minneapolis  and  Duluth,  in  this  state,  for  ter- 
minal inspection  and  weighing  service,  the  said  commissioners 
jire  hereby  authorized,  if  in  their  judgment  it  is  expedient  and 
feasible,  to  furnish  such  service.  Provided,  that  such  owner 
or  manager  shall  first  enter  into  an  agreement  with  said  com- 
missioners to  pay  all  costs  of  such  service  at  such  local  point. 
The  said  commissioners  shall  also,  if  in  their  judgment  it  is  con- 


MINNESOTA.  429 

sidered  desirable,  make  and  promulgate  special  rules  and  regu- 
lations covering  such  service  at  country  terminal  points. 

Sec.  2.  All  laws  of  this  state  applying,  governing  and  regulat- 
ing, weighing  and  insi^cction  of  grain  at  St.  Paul,  Minneapolis, 
Duluth  tmd  St.  Cloud  shall  apply,  regulate  and  govern  the 
weighing  and  inspection  of  grain  at  all  j)()ints  which  may  here- 
after be  established  as  terminal  points  by  the  railroad  antl 
warehouse  connnissioners. 

Sec.  3.  This  act  shall  take  effect  and  be  in  force  from  and 
after  its  passage. 

Approved  April  6,  1901. 

Chapter  334,  General  Laws,  1901. 
An  Act  to  establish  state  weighing  and  inspection  of  grain 
at  the  city  of  Willmar,  in  the  county  of  Kandiyohi,  and  mak- 
ing said  city  of  AVillmar  a  terminal  point,  and  making  all  laws 
of  this  state  that  are  applicable  to  the  weighing  and  inspection 
of  grain  at  the  terminal  points  of  St.  Paul,  Minneapolis,  Duluth, 
St.  Cloud,  Fergus  Falls  and  Winona  applicable  to  Willmar. 

Be  it  enacted  by  the  legislature  of  the  state  of  Minnesota : 

Section  1.  The  city  of  Willmar,  in  the  county  of  Kandiyohi, 
is  hereby  made  and  established  as  a  terminal  point  for  the 
weighing  and  inspection  of  grain. 

Sec.  2.  All  laws  of  this  state  applying,  governing  and  reg- 
ulating the  weighing  and  inspection  of  grain  at  St.  Paul, 
Minneapolis,  Duluth  and  St.  Cloud  shall  apply,  regulate  and 
govern  the  weighing  and  inspection  of  grain  at  the  city  of 
Willmar. 

Sec.  3.  This  act  shall  take  effect  and  be  in  force  from  and 
after  its  })assage. 

Approved  April  13,  1901. 

Chapter  132,  General  Laws,  1901. 

An  Act  to  establish  state  weighing  and  inspection  of  grain 

at  the  city  of  New  Prague,  in  the  counties  of  Scott  and  Le  Suour. 

and  making  said  city  of   New  Prague  a  terminal  point,  and 

making  all  laws  of  this  state  that  are  applicable  to  the  weigh- 


430  IkUNNESOTA    LAWS. 

ing  and  inspection  of  grain  at  the  terminal  points  of  St.  Paul, 
Minneapolis,  Duluth,  St.  Cloud,  Little  Falls,  Fergus  Falls  and 
Winona  applicable  to  New  Prague. 

Be  it  enacted  by  the  legislature  of  the  state  of  Minnesota: 

Section  1.  The  city  of  New  Prague,  in  the  counties  of  Scott 
and  Le  Sueur,  is  hereby  made  and  established  as  a  terminal 
point  for  the  weighing  antl  inspection  of  grain. 

Sec.  2.  All  laws  of  this  state  applying,  governing  and  regulat- 
ing the  weighing  and  inspection  of  grain  at  St.  Paul,  Minne- 
apolis, Duluth,  St.  Cloud,  Little  Falls,  Fergus  Falls  and  Winona 
shall  apply,  regulate  and  govern  the  weigliing  and  inspection 
of  grain  at  the  city  of  New  Prague. 

Sec.  3.  This  act  shall  be  in  force  from  and  after  its  passage. 

Approved  April  4,  190L 

Chapter  107,  General  Laws,  190L 
An  Act  to  amend  subsection  ''second"  of  subsection  3  of  sec- 
tion fifteen  (15)  of  chapter  one  hundred  and  forty-five  (145)  of 
the  General  Laws  of  the  year  1895,  relating  to  banks  of  dis- 
count and  deposit. 

Be  it  enacted  by  the  legislature  of  the  state  of  Minnesota  : 
Section  1.  That  subsection  "second"  of  subsection  3  of  sec- 
tion fifteen  (15)  of  chapter  one  hundred  and  forty-five  (145)  of 
the  General  Laws  of  the  year  1895,  relating  to  banks  of  dis- 
count and  deposit,  be  and  the  same  is  hereby  amended  so  as 
to  read  as  follows : 

"Second.  That  the  full  amount  of  the  loans  shall  at  all  times 
be  covered  by  policies  of  fire  insurance  issued  by  companies 
admitted  to  do  business  in  this  state,  to  the  extent  of  their 
ability  to  cover  such  loans,  and  then  by  companies  having 
sufficient  paid-up  capital  to  be  so  admitted,  and  all  such  policies 
shall  be  made  payable  in  case  of  loss  to  the  bank  or  holder  of 
the  warehouse  receipts,  exce})t  that  in  all  cases  where  the  prod- 
ucts covered  by  warehouse  receipts  are  stored  in  a  warehouse 
or  warehouses  pronounced  by  the  railway  and  warehouse  com- 
missioners to  be  fireproof,  their  certificate  to  that  effect  to    be 


MINNESOTA.  43]^ 

accepted  in  lieu  of  the  policy  of  fire  insurance  provided  for  in 
this  clause." 

Sec.  2.  This  act  shall  take  effect  and  be  in  force  from  and 
after  its  passage. 
Approved  April  2,  1901. 


432  MINNESOTA   DECISIONS. 

DECISIONS  AFFECTING  WAREHOUSEMEN. 

A. 

Bailment  and  sale. 

AMiere  a  party  delivers  or  deposits  grain  with  another,  with 
an  agreement,  express  or  implied,  that  the  latter  may  use  and 
dispose  of  it,  and  fulfill  his  obligations  to  the  former  by  return- 
ing an  equal  amount  of  other  grain  of  the  same  quality,  the 
transaction,  in  the  absence  of  a  statute  changing  the  rule,  is  a 
sale  and  not  a  bailment.  Fishback  v.  Va7i  Dusen  &  Co.,  33 
Minn.  110.  (Note.  The  party  receiving  the  wheat  for  storage 
was  not  a  "warehouseman."  See  Nat.  Ex.  Bank  of  H.  v.  Wilder, 
34  Minn.  149,  modifying  certain  dicta  in  above  case  and  dis- 
tinguishing the  same.)  See  also  Weilatid  v.  Krejnick,  63  Minn. 
314;  Weiland  v.  Sumvall,  63  Minn.  320. 

Same — Right  to  sell  at  any  time — Sale. 

In  an  action  against  a  warehouseman  to  recover  the  value 
of  wheat  deposited  with  him,  the  evidence  showed  that  it  was 
the  invariable  custom  at  the  warehouses  in  the  city  to  mingle 
together  all  the  grain  of  the  same  grade,  and  that  this  was  done 
with  the  knowledge  of  the  depositors,  and  that,  if  a  depositor 
.should  demand  the  wheat,  instead  of  the  value,  he  would  not 
receive,  unless  by  accident,  any  of  the  identical  wheat  deposited 
by  him.  The  evidence  further  showed  that  it  was  unusual  for 
the  depositor  to  demand  a  return  of  the  wheat,  as  he  almost 
always  choose  to  take  the  value  thereof  at  the  date  on  which 
he  surrendered  th(»  receipt  and  closed  the  transaction.  Held 
that  such  a  contract  constituted  a  sale  and  not  a  bailment. 
Rahilly  v.  Wilson,  3  Dillon,  420. 

Same — Option  to  buy. 

A  receipt  for  grain  placed  in  store,  which  in  all  other  respects 
constituted  a  bailment,  contained  the  following:  "The  condi- 
tions on  which  this  wheat  is  received  at  this  elevator  are  that 
Rieger  (the  warehouseman)  has  this  option:  either  to  deliver 
the  grade  of  wheat  that  this  ticket  calls  for,  or  to  pay  the  bearer 
the  market  price  tor  the  same,  less  elevator  charges,  on  sur- 


MINNESOTA.  4:3:3 

render  of  this  ticket."  Held  that  this  did  not  render  the  con- 
tract one  of  sale.  It  merely  gave  the  warehouseman  an  option 
to  buy  when  the  receipt  was  presented.  This  option  he  could 
only  exercise  when  the  receipt  was  presented,  and  by  paying 
the  money.  State  of  Minnesota  v.  Rilger,  59  Minn.  151;  Slate 
V.  Cowdery,  79  Minn.  94. 

B. 

Ordinary  care — Evidence  oj  cuatom  not  conclusive  as  to  such 
care  having  been  exercised. 

The  following  held  to  be  correct  instruction  given  by  the 
court,  to  the  jury,  in  defining  the  degree  of  care  to  be  exercised 
by  a  warehouseman:  "That  by  ordinary  care  is  meant  that 
care  which  a  person  of  common  prudence  takes  of  his  own  con- 
cerns, or  that  degree  of  care  which  men  of  common  prudence 
exercise  about  their  own  affairs  in  the  age  and  country  in  which 
they  live;  that  in  determining  what  would  be  ordinary  care  in 
this  particular  case,  reference  must  be  had  as  to  the  actual 
state  of  societ}^  the  business  habits,  and  general  usage  peculiar 
to  the  time  and  country.  That  what  is  done  by  men  of  ordi- 
nary prudence  in  any  particular  country  in  respect  to  things  of 
a  like  nature,  whether  it  be  more  or  less,  in  point  of  diligence, 
than  what  is  exacted  in  another  country,  becomes  in  fact  the 
general  measure  of  diligence.  But  the  evidence  of  customs  of 
railroads  given  in  this  case  is  merely  evidence  to  go  to  the  jury 
for  what  it  is  worth.  It  is  not  conclusive."  Derosia  v.  The 
Winona  &  St.  Peter  R.  R.  Co.,  18  Minn.  133. 

Rights  of  depositors — Title  to  goods — Commingling  grain. 

A  deposit  of  grain  for  storage  is  a  bailment,  the  title  remain- 
ing in  the  depositor,  so  that  he  is  deemed  to  be  the  owner  of 
the  grain  in  the  warehouse  to  the  amount  of  his  deposit,  al- 
though the  identical  grain  he  deposited  has  been  removed,  and 
other  grain,  of  like  kind  and  quality,  substituted  in  its  stead. 
Hall  V.  Pillsbury  et  al.,  43  Minn.  33. 

Demand  on  agent  in  charge  of  warehouse,  proper. 

An  agent  lawfully  in  charge  of  the  business  of  a  warehouse 
in  which  goods,  the  title  to  which  is  in  dispute,  are  deposited 
in  the  proper  party  upon  whom  to  make  demand  for  the  de- 
28 


434  MINNESOTA    DECISIONS. 

livery  thereof,  by  the  person  claiming  title  thereto.     Lundberg 
V.  Northwestern  Elevator  Co.,  42  Minn.  37. 

Conversion — Sale  by  warehouseman — Owners  may  folloic  goods. 

If  a  warehouseman  sell  as  his  own,  out  of  a  common  mass  of 
grain  in  his  warehouse,  any  in  excess  of  that  which  he  person- 
ally has  stored  there,  it  is  a  conversion,  his  sale  passes  no  title 
and  the  owners,  the  depositors,  may  follow  the  grain  into  the 
hands  of  the  purchaser  and  recover  of  him.  Hall  v.  Pillsbury 
et  al,  43  Minn.  33. 

Same — Same — Fraudulent  sale  by  warehouseman — Equity. 

A  warehouseman  received  wheat,  for  storage,  from  different 
depositors,  and  mingled  the  same  in  a  common  mass,  issuing 
receipts  for  the  same  to  the  various  owners.  The  warehouse- 
man, after  having  fraudulently  sold  a  large  quantity  of  the 
wheat,  absconded.  The  creditors  thereupon  attached  all  the 
wheat  remaining  in  the  warehouse.  In  an  action  of  replevin, 
brought  by  one  holding  a  majority  of  the  receipts,  against  the 
sheriff,  in  which  he  claimed  that  he  was  entitled  to  all  of  the 
property  remaining  in  the  warehouse,  the  court  held  that  he 
was  not  so  entitled;  that  no  one  of  such  receipt  holders  could 
recover,  at  law,  the  whole  amount,  nor  could  any  number  of 
such  holders,  less  than  all  of  them,  recover  the  whole  amount 
stored.  The  court  further  held  that  it  was  a  case  to  be  brought 
in  equity.  Hammergen  v.  Schuermier  et  al,  1  McCrary,  434; 
Greenleaf  et  al  v.  Dows  &  Co.,  8  Fed.  Rep.  550. 

Same — Wrongful  shipment  by  warehouseman  of  grain  stored — 
Demand  by  receipt  holder. 

A  demand  by  the  holder  of  a  warehouse  receipt  for  grain 
deposited  for  storage,  for  the  amount  represented  by  the  receipt, 
is  good  notwithstanding  that,  by  reason  of  removal  of  grain 
by  the  warehouseman,  there  is  not  enough  left  in  store  to  an- 
swer all  the  receipts.  Lenthold  et  al.  v.  Fairchild  et  al,  35 
Minn.  99. 

Same — Same — Liability  of  agent,  knowingly  aiding  in  the  wrong. 
The  agent  of  a  warehouseman,  who  assists  him  in  wrongfully 


MINNESOTA.  435 

disposing  of  the  wheat,  knowing  that  he  is  doing  it  wrongfully, 
is  liable  to  the  owners  of  the  wheat.     Id. 

Contract  of  storage — Evidence — Correspondence. 

The  complaint  herein  alleged  that  the  plaintiff  sold  and  de- 
livered, at  French,  Minn.,  to  the  defendant,  a  (juantity  of 
wheat,  for  which  it  agr(>ed  to  i)ay,  at  any  future  time  when 
demanded,  the  then  market  price  of  wheat  at  Duluth  or  xMinne- 
apolis,  less  thirteen  cents  per  bushel.  Held  that  certain  cor- 
respondence between  the  parties  did  not  establish  such  con- 
tract.    Wemple  v.  Northern  Dakota  Elevator  Co.,  67  Minn.  87. 

H. 

Tender  of  storage  charges — Waiver. 

It  is  competent  for  a  bailee  of  grain  held  in  store  to  waive  the 
formal  requisites  of  a  tender  of  charges  and  grain  receipts  pro- 
vided for  by  Gen.  St.  1878,  ch.  124,  sec.  15.  Wallace  v.  Minne- 
apolis &  Northern  Elevator  Co.,  37  Minn.  464;  Tarbell  v.  Farmers' 
Mutual  Elevator  Co.,  44  Minn.  471. 

Ground  of  refusal — Estoppel. 

Where  a  bailee  places  his  refusal  to  deliver  stored  grain  solely 
on  the  ground  that  it  is  claimed  by  a  third  party,  he  will  not  be 
permitted  subsequently  to  change  his  position,  and  justify  such 
refusal  on  the  ground  that  his  charges  are  not  jjaid.  Wallace 
V.  Minneapolis  &  Northern  Elevator  Co.,  .37  Minn.  464. 

Excessive  sale  for  storage  charges — Conversion — Burden  of 
proof. 

A  large  number  of  articles  were  deposited  b}-  plaintiff  with 
defendant  for  storage,  the  charge  for  storage  to  be  two  dollars 
per  month.  After  the  storage  for  the  first  month  had  been 
due  for  more  than  three  months,  the  defendant  advertised  and 
sold  article  by  article,  all  the  goods,  undoi-  the  ])rovisions  of 
laws,  1889,  ch.  1999.  Enough  was  realized  to  more  than  pay 
the  charges  overdue  for  three  months  and  expenses  of  the  sale. 
The  action  being  for  conversion,  held  that  the  right  to  sell 
ceased  as  soon  as  the  sale  had  produced  enough  to  satisfy  the 
charges  overdue  three  months  and  expenses  of  sale,   and  all 


436  MINNESOTA   DECISIONS. 

articles  sold  after  that  were  illegally  sold;  and  it  was  for  de- 
fendant to  show  what  articles  were  sold  before  the  right  to  sell 
ceased,  and,  there  being  no  evidence  on  this  point,  plaintiff  was 
entitled  to  recover  the  value  of  all  the  articles.  Jesurun  v. 
Kent,  45  Minn.  222. 

W arehousemarC a  lien  for  his  charges  and  for  freight,  distin- 
guished. 

The  lien  of  a  warehouseman  upon  goods  for  warehouse  charges, 
and  the  lien  of  a  warehouseman  upon  goods  for  money  advanced 
for  freight  charges,  depend  upon  different  principles  of  law. 
A  warehouseman  w^ho  receives  goods  from  a  steamboat  in  the 
carrying  trade,  and  pays  to  such  boat  the  freight  charges,  does 
not  by  reason  of  such  payment  obtain  a  lien  upon  the  goods. 
Bass  &  Co.  V.  Ujpton,  1  :\Iinn.  408. 

I. 

Grain  in  mass — Receipt  holders  tenants  in  common — When 
loarehouseman  tenant  in  common. 

Where  the  grain  of  several  depositors  is  deposited  in  a  com- 
mon mass,  the  receipt  holders  are  tenants  in  common  of  the 
mass,  the  interest  of  each  being  limited  to  the  amount  called 
for  by  his  receipt.  The  warehouseman  too  may  be  a  tenant 
in  common;  if  he  has  grain  in  the  mass  his  interest  is  limited 
to  the  excess  above  what  is  necessary  to  meet  his  outstanding 
receipts.  Hall  v.  Pillshury,  43  Minn.  33;  Nai.  Ex.  Bank  of  H. 
V.  Wilder,  34  Minn.  149. 

M. 

Pledge — Constructive  possession — Warehouse  receipt. 

While  possession  by  the  pledgee  is  necessary  to  the  existence 
and  continuance  of  a  pledge,  yet  this  need  not  be  actual  physi- 
cal possession.  The  delivery  of  a  recognized  symbol  of  title, 
such  as  a  warehouse  receipt,  which  puts  the  pledgee  in  control 
and  constructive  possession  of  the  property,  is  sufficient.  Nat. 
Ex.  Bank  of  H.  v.  Wilder,  34  Minn.  149. 

Same — Commingled  wheat. 

Where  the  pledged  property  is  part  of  a  larger  uniform  mass, 
as  wheat  in  an  elevator,  separation  from  such  uniform  mjiss  is 


MINNESOTA.  437 

not  necessary  to  (Constitute  an  appropriation  of  tiu;  property 
to  the  contract  of  pledge.  The  pledgee  becomes  tenant  in 
common  with  the  other  owners.     Id. 

Same — Substitution  of  other  grain  by  warehouxemcui  {pledgor). 

Where  a  warehouseman  has  pledged  the  warehou.se  rece'pts 
for  his  own  wheat  stored  in  his  own  warehouse,  which  wh(^at  is 
commingled  with  that  of  his  customers,  and  in  the  course  of 
his  business  ships  out  the  specific  grain  pledged  and  purchases 
and  stores  in  his  warehouse  other  grain  of  the  same  kind  and 
quality,  the  latter,  by  virtue  of  the  provisions  of  the  statute 
(ch.  86,  Laws  of  1876),  takes  the  ))lace  of  the  fornier,  and  is  ap- 
propriated to  the  contract  as  the;  property  of  the  pledgee  or 

depositor.     Id. 

N. 

Loss  by  fire — Nondelivery  due  to  warehouseman's  negligence — 
Liability. 

If,  by  the  negligence  of  a  warehouseman,  the  owner  of  goods 
stored  with  him  is  unable  to  obtain  possession  thereof,  and,  as 
a  consequence,  the  goods  remain  with  the  warehouseman  and 
are  afterwards  burned,  although  without  the  fault  of  the  ware- 
houseman, it  was  held  that  this  was  a  direct  consequence  of  the 
warehouseman's  default,  and  he  is  liable  therefor.  Derosia  v. 
The  Winona  &  St.  Peter  R.  R.  Co.,  18  Minn.  138. 

Negligence  of  warehousemen — Decai/  of  apples  in  cold  storage — 
Jury. 

Where  plaintiff  stored  apples  in  the  cold  storage  warehouse 
of  defendant  and  there  was  sufficient  evidence  of  negligence  on 
the  part  of  defendant  to  justify  the  verdict  in  favor  of  i)laintiff; 
it  was  held  such  verdict  will  not  be  set  aside  on  appeal,  and 
further,  that  the  question  of  negligence  was  properly  one  for  the 
jury.     Townsend  v.  Rich,  58  Minn.  559. 

Same — Rendering  them  insurers. 

Defendants,  warehousemen,  received  from  the  plaintiff,  for 
storage,  certain  goods,  she  was  to  bear  the  risk  from  fir(\  and 
so  had  the  goods  insured  in  the  warehouse.  In  contemplation 
of  their  removing  the  goods,  at  some  indefinite  time,  to 
another  warehouse,  they  agreed    to  give  her  notice  when  the 


438  MINNESOTA    DECISIONS, 

goods  were  removed,  so  that  she  might  have  the  insurance 
continued  on  them  in  such  warehouse.  Defendants  removed 
the  goods  but  failed  to  give  notice  to  the  plaintiff.  By  the 
removal  the  insurance  became  void.  The  goods  wore  destroyed 
by  firo.  Defendants  had  no  authority  from  plaintiff  to  make 
any  arrangements  for  insurance.  D(>fcndants  testified,  but  it 
was  denied  by  the  agent  of  the  insurance  company,  that  they 
informed  such  agent  of  the  removal  of  the  goods  and  that  he 
promised  to  make  the  necessary  change  in  the  policy.  Held 
that,  conceding  plaintiff,  when  informed  of  this  after  the  fire, 
might  have  adopted  or  ratified  what  defendants  testified  to,  as 
an  agreement  by  the  insurer  to  continue  the  policy,  she  was  not 
bound  to  do  so,  and  that  though  found  by  the  jury  to  be  as 
defendants  testified,  it  was  no  defense  to  an  action  for  neglect- 
ing to  give  notice  of  the  removal.  Conover  v.  Wood,  48  Minn. 
438  ;  Brigham  v.  Wood,  48  Minn.  344. 

Negligence  in  storage  of  cheese — Dripping  brine  pipes — Terms 
of  receipt. 

The  defendant,  a  warehouse  company,  received  from  plain- 
tiff a  large  amount  of  cheese  for  storage  in  its  warehouse  and 
issued  to  plaintiff  a  receipt,  the  conditions  of  which  were 
as  follows:  "All  property  is  to  be  at  owner's  risk  of  any  loss 
or  damage  from  riot,  fire,  water,  deterioriation,  defective  coop- 
erage, packing,  ratage,  vermin,  leakage,  frost,  or  from  being 
perishable  or  otherwise  inherently  defective  when  stored." 
The  overhead  brine  pipes  used  by  defendant  in  keeping  a  low 
temperature  in  its  storage  room  were  covered  with  ice,  and 
the  defendant  negligently  allowed  the  temperature  in  said  room 
to  rise  so  that  the  ice  melted,  and  the  water  therefrom  dripped 
down  upon  and  greatly  damaged  plaintiff's  cheese.  Held  that 
defendant  was  not  exempt  from  liability  for  damage  caused 
by  its  own  negligence.  Minn.  Butter  &  Cheese  Co.  v.  St.  Paul 
Cold  Storage  Warehouse  Co.,  75  Minn.  445. 

0. 

Measure  of  damages — When  conversion  willful  and  when  not — 
Rule  stated. 

Where  the  conversion  of  personal  property  is  accidental  and 


MINNESOTA.  439 

under  the  belief  that  the  person  has  a  right  to  the  property,  and 
he  acts  with  no  wrongful  purpose  or  intent,  the  measure  of 
damages  is  the  value  of  the  property  at  the  time  of  the  actual 
taking  and  conversion.  But  where  the  original  taking  and  con- 
version is  willful  and  without  color  or  claim  of  right,  the  meas- 
ure of  damages  is  the  value  of  the  property  at  the  time  and  in 
the  condition  in  which  it  is,  when  demand  for  its  return  is 
made.     Dolliff  v.  Robhins,  83  Minn.  498. 

Q- 

Warehouse  receipts — Expressed  conditions  as  to  payments  to 
be  made — Notice  to  purchaser. 

In  certain  warehouse  receipts,  issued  to  a  third  party  and 
purchased  by  the  plaintiff,  there  appeared  a  clause  whereby 
the  warehouseman  stipulated  to  deliver  a  specified  number  of 
gallons  of  whiskey  on  return  of  the  receipts  and  "payment  of 
the  whiskey,  the  United  States  government  and  state  tax,  in- 
terest and  charges."  Held  that  although  the  words  "payment 
of  the  whiskey"  were  indefinite  and  ambiguous,  it  was  obvious 
that  a  prepayment  of  some  character  was  required  in  addition 
to  the  government  and  state  tax,  interest  and  charges.  By 
the  use  of  this  language  the  plaintiff  was  notified  of  an  infirmity 
in  the  receipts,  and  he  was  bound  to  inquire  its  meaning  or, 
failing  to  do  so,  suffer  the  consequences.  Stein  v.  Rhdnstrom 
et  al,  47  Minn.  476. 

Same — Construction  of — Advanced  charges. 

A  warehouse  receipt  stated  that  the  property  was  deliverable 
"on  payment  of  charges"  without  stating  their  nature  or 
amount,  the  spaces  for  the  insertion  of  the  amount  of  "storage" 
and  "advanced"  charges  respectively  being  left  blank.  Held 
that  this  was  sufficient  to  put  a  purchaser  of  the  property  upon 
incjuiry  as  to  the  amount  and  character  of  the  charges,  and 
that  the  warehouseman  was  not  estopped,  as  against  such  pur- 
chaser, from  asserting  his  lien  for  "advanced"  charges.  Se- 
curity Bank  of  Minnesota  v.  Minneapolis  Cold  Storage  Co.,  55 
Minn.  107. 

Same — Same — Contract  of  insurance  in. 

A  storage  receipt  for  wheat  delivered  at  a  public  elevator, 


440  MINNESOTA   DECISIONS. 

after  stating  the  rate  of  storage,  contained  the  following  clause: 
"This  charge  for  storage  shall  cover  the  loss  by  fire  only;  all 
other  damage  by  the  elements,  or  by  heating  or  riot,  or  by  the 
act  of  God,  or  which  in  any  way  has  been  caused  b}'  the  holder 
of  this  receipt,  shall  be  excepted."  Held  this,  by  implication, 
constituted  a  contract  of  insurance  by  the  warehouseman  against 
loss  by  fire.     Thompson  v.  Thom-pson,  78  Minn.  379. 

Same — Same — Modification  of  contract. 

Furtlier  held  in  above  case  that  by  a  subsequent  agreement 
modifying  the  contract  so  as  to  provide  that  no  charge  should 
thereafter  be  made  for  storing  the  grain,  this  implication  as  to 
insurance  dropped  out  and  thereafter  the  warehouseman  was 
not  such  insurer.     Id. 

Same — Rate  of  storage. 

The  storage  receipt  pro\'ided  that  the  rate  of  storage  "shall 
not  exceed  four  cents  for  six  months."  Held  this  was  in- 
tended to  fix  the  rate  of  storage  and  not  the  duration  of  the 
bailment.     Id. 

Same — Authority  to  sell. 

A  provision  in  a  storage  receipt,  issued  under  G.  S.  1894, 
sec.  7646,  that  the  stored  property  may  be  mingled  with  other 
property  of  the  same  kind  or  transferred  to  other  elevators  or 
warehouses,  does  not  confer  authority  on  the  warehouseman 
to  sell  the  property  described  therein.  State  v.  Cowdery,  79 
Mimi.  94. 

Same — Written  parts  control  printed. 

In  a  contract  for  the  storage  of  wheat  by  which  a  warehouse- 
man had  authority  to  sell,  there  was  an  inconsistency  or 
conflict  between  the  written  and  printed  parts  thereof;  it  was 
held  that  the  written  parts  controlled.  Murray  v.  Pillsbury, 
59  Minn.  85. 

Same — Estoppel  by. 

Where  a  warehouseman  has  issued  a  negotiable  receipt,  he 
is  estopped  to  deny  that  he  has  received  the  goods,  in  an  action 


MINNESOTA.  441 

brought  against  him   for  their  value    by  an  assignee   thereof. 
M'Neil  V.  Hill,  1  Woohvorth,  96. 

Same — Pledge  by  warehouseman. 

The  owner  of  goods,  if  a  ivarehouseman,  can  pledge  the  same 
by  issuing  and  delivering  his  own  warehouse  receipt  to  the 
pledgee.  Nat.  Ex.  Bank  of  H.  v.  Wilder,  34  .Minn.  149,  mod- 
ifying Fishback  v.  Van  Duse7i  &  Co.,  33  Minn.  ill. 

Same — Same — Warehouse  act  of  1876. 

Under  the  grain  warehouse  law  of  1876  no  distinction  can  be 
made  between  the  person  who  makes  an  actutd  delivery  of  his 
grain  at  a  public  warehouse  (actuall}^  ui)on  deposit  in  the  ware- 
house), and  the  one  who  leaves  it  in  store  with  the  j)r()j)rietor 
as  his  bailee,  taking  a  warehouse  receipt  therefor,  following 
the  rule  laid  down  in  Nat.  E.t.  Bank  of  H.  v.  Wilder,  34  Minn. 
149.     Eggers  et  al.  v.  Nat.  Bank  of  Commerce,  40  Minn.  182. 

Same — Cold  storage — Exemption  from  liability — Negligence. 

A  warehouse  receipt  issued  by  a  warehouseman  to  his  bailor, 
exempting  the  former  from  liability  for  loss  from  certain  causes, 
construed  and  held  that  the  loss  did  not  result  from  any  of  the 
excepted  causes.  Hunter  v.  Baltimore  Packing  and  Cold  Stor- 
age Co.,  75  Minn.  408. 

Same — Negotiabiliy— Transfer  by  sale  without  indorsement. 

The  title  to  property  represented  by  a  warehouse  receipt 
may  be  passed  by  the  sale,  transfer  and  delivery  of  the  receipt 
for  a  valuable  consideration,  although  not  in  the  form  of  an 
indorsement.  State  v.  Loomis,  27  Minn.  521 ;  Pease  v.  Rush,  2 
Minn.  89. 

Sajne — Bo7ia  fide  holder  protected. 

A  public  warehouseman  issuer!  numerous  receipts  for  wheat 
stored  in  his  warehouse,  some  of  which  were  in  the  hands  of 
the  plaintiff,  he  having  acquired  tiiem  in  good  faith.  The 
warehouseman  then  shij^ped  the  wheat  to  defendants,  commis- 
sion merchants,  who  sold  the  same  and  applied  the  proceeds 
to  a  debt  due  them  from  the  warehouseman.     Held  this  was  a 


442  MINNESOTA    DECISIONS. 

c'onA-ersion  on  the  part  of  defendants  and  that  they  were  liable 
to  plaintiff  for  value  of  the  wheat.  DollijJ  v.  Ro1)bins,  83 
Minn.  498. 

Same — Purchaser  of,  must  exercise  ordinary  prudence. 

The  purchaser  of  what  puri)orts  to  be,  or  is  said  to  be,  nego- 
tiable paper,  must  exercise  ordinary  prudence  in  respect  to 
knowledge  derived  from  an  inspection  of  the  paper.  Stein  v. 
Rlieinstrom  et  dl.,  47  Minn.  476. 

Same — Implied  contract  of  insurance  passes  with  assignment. 

Where  a  warehouse  receipt  contains  an  implied  contract  of 
insurance  of  the  wheat  stored,  held  that  an  assignment  of  such 
contract  of  insurance  passed  by  a  transfer  of  the  storage  receipt. 
Thompson  v.  Thompson,  78  Minn.  379. 

Same — As  collateral — Payments  from  hill  of  sale  or  from  re- 
ceipts— Burden  of  proof  on  defendant — Judgment  sustained  by 
findings. 

According  to  the  findings  of  the  court,  prior  to  the  execution 
of  the  bill  of  sale,  the  insolvent  had  executed,  as  security  for  his 
indebtedness  to  the  defendant,  warehouse  receipts  for  chattel 
property,  some  of  which  were  afterwards  also  included  in  the 
bill  of  sale  referred  to.  The  defendant  permitted  the  insolvent 
to  retain  possession  of  all  the  property  covered  by  either  the 
receipts  or  the  bill  of  sale,  to  sell  and  dispose  of  it  and  to  pay 
part  of  the  proceeds  to  apply  to  the  indebtedness  for  which 
the  property  was  security,  and  to  use  part  in  his  own  business. 
The  payments  sought  to  be  recovered  in  this  action  were  made 
out  of  the  proceeds  of  property  covered  by  either  or  both  the 
warehouse  receipts  and  the  bill  of  sale,  but  the  court  did  not 
find,  except  as  to  $700,  what  amount  of  such  payments  was 
made  out  of  proceeds  of  property  covered  by  the  warehouse 
receipts.  Held  that,  under  the  circumstances,  the  burden  was 
on  the  defendant  to  show  what  part  of  the  payments  was  made 
out  of  the  proceeds  of  property  covered  by  warehouse  receipts, 
and  hence  that  the  findings,  as  made,  justified  an  order  for  judg- 
ment against  the  defendant  for  the  full  amount  of  the  pay- 


MlNNKSDlA.  443 

ments  except  the  $700.     Clarke  v.  Xal.  Citizens  Bank  of  Man- 
kato,  74  Minn.  58. 

Same — '^Exchange  tickets''  and  '^inspector's  tickets"  for  same 
property  both  outstanding — Liability. 

Tlie  (lofondaut,  a  railroad  company,  issued  to  the  plaintiff, 
"inspector's  ticket'"  for  wheat  stored  with  it,  and,  upon  the 
l)resentation  of  the  ticket  to  the  agent  of  the  railroad,  it  issued, 
in  lieu  thereof,  in  accordance  with  its  custom,  an  "exchange 
ticket."  It  appeared  that  in  some  manner  the  original  "in- 
spector's ticket"  found  its  way  into  the  hands  of  other  parties, 
who  presented  the  same  to  defendant  and  obtained  possession 
of  the  wheat.  Upon  demand,  by  the  plaintiff,  for  the  wheat, 
the  defendant  refused  to  deliver,  alleging  that  it  had  already 
made  delivery  thereof.  The  court  held  that  the  delivery  by 
the  defendant  to  one  holding  "inspector's  ticket"  was  an  affair 
between  the  defendant  and  its  agent  or  such  other  person,  with 
which  the  plaintiff  had  no  concern,  and  that  the  plaintiff  was, 
therefore,  entitled  to  judgment  against  the  defendant  for  the 
value  of  the  wheat.  Lewis  et  al.  v.  St.  Paul  &  S.  C.  R.  R.  Co., 
20  Minn.  260. 

Same — Informal  receipts — Warehouseman  not  estopped  by. 
A  warehouseman  issued  a  receipt  in  the  following  form: 

No.  711. 

Account  A.  P.  Foster. 

41.25  bushels No.  2  wheat. 

20  sacks. 
Dyer.  J-  G.  Swart. 

Minneiska,  Sept.  29,  1866. 

The  owner  disposed  of  this  receipt  and  after  several  trans- 
fers it  became  the  property  of  the  plaintiff.  The  warehouse- 
man stored  the  wheat,  represented  by  this  receipt,  in  a  separate 
bin  and,  when  the  plaintiff  demanded  the  same  of  him,  the 
identical  wheat  deposited  was  tendered  for  delivery.  The  plain- 
tiff declined  to  receive  the  same  on  the  ground  that  it  was  in- 
ferior to  No.  2  wheat,  as  stated  on  the  receipt.     In  an  action 


444  MINNESOTA   DECISIONS. 

against  the  warehouseman,  it  was  held  that  this  receipt  con- 
tained no  representation  that  the  defendant  had  agreed  to 
(iehver  to  Foster,  or  his  assigns,  No.  2  wheat;  that  it  did  not 
constitute  the  contract  between  the  warehouseman  and  Foster 
and,  to  ascertain  what  this  agreement  was,  it  was  necessary  for 
the  plaintiff  to  go  outside  of  the  receipt  and  to  inquire  for  the 
other  facts.  Further,  that  the  defendant  was  not  estopped  by 
the  terms  of  this  receipt.  Robson  v.  Sicart,  14  Minn.  371;  Her- 
rick  et  al.  v.  Barnes,  78  Minn.  475. 

Same — Contract  for  sale  and  storage  construed. 

A  certain  contract  construed  and  held  to  be  an  agreement 
by  the  owner  of  grain  giving  the  warehouseman  authority  to 
sell  it  as  the  agent  of  the  owner,  and  not  merely  a  contract  for 
storage,  except  such  temporary  storage  as  is  incident  to  re- 
ceiving, shipping  and  selling.     Murray  v.  Pillsbury,  59  Minn.  85. 

Same — Indictment  for  larceny  of  receipt — Cannot  plead  want  of 
authority. 

The  defendant  was  proceeded  against  under  an  indictment 
charging  him  with  the  larceny  of  certain  warehouse  receipts, 
which  were  issued  by  a  railroad  company  acting  in  the  capacity 
of  a  warehouseman.  The  defendant,  among  other  defenses,  alleged 
that  the  receipts  issued  by  the  railroad  company  were  not 
warehouse  receipts,  within  the  meaning  of  the  statutes,  and, 
under  its  corporate  i)owers,  it  had  no  authority  to  issue  such 
receipts.  In  this  regard,  the  court  held  that  the  railroad  had 
assumed  the  legal  riglit  to  exercise  the  requisite  authority,  and, 
having  reaped  the  benefit  of  the  transaction,  it  would  be  es- 
topped from  setting  up  a  want  of  authority  in  any  action  brought 
on  the  receipts,  by  any  lawful  holder  thereof.  Further,  that, 
if  the  railroad  company  could  interpose  no  such  defense  against 
its  liability,  upon  the  receipts,  certainly  the  party  who  had 
feloniously  obtained  possession  thereof  could  not  be  heard  to 
assert  it  in  answer  to  indictment  for  the  theft.  State  v.  Loomis, 
27  Minn.  521. 

Same — Contract — Parol  evidence. 

Where  a  writing  embraces  both  a  receipt  and  a  contract,  the 


MINNESOTA.  445 

contract  cannot  be  varied  by  parol,  any  more  than  if  it  were  a 
separate  instrument.  Tarhell  v.  Farmer's  Mutual  Elevator  Co., 
44  Minn.  471. 

Same — Same — Same — Firm  name. 

Defen(iant,  Thompson,  was  doing  business  in  the  name  of 
Smith  &  Thompson,  and  the  storage  receipt  was  signed  in  that 
name.  Held  the  terms  of  the  receipt  could  not  for  that  reason 
be  varied  by  parol,  except  so  far  as  to  explain  the  fact  that  de- 
fendant was  doing  business  under  such  firm  name.  Thompson 
V.  Thompson,  78  Minn.  379. 

Same — Conversion  of  wheat — Evidence. 

Rule  applied  and  evidence  considered  in  an  action,  by  the 
holder  of  storage  receipts  for  wheat  issued  by  a  warehouseman, 
against  a  purchaser  of  the  wheat  from  the  warehouseman  for 
its  conversion,  and  held,  (1)  that  it  was  error  for  the  trial  court 
to  dismiss  the  action  without  making  findings  of  fact;  (2)  that 
the  evidence  would  have  sustained  a  finding  to  the  effect  that 
the  title  to  the  wheat  in  question  was  in  plaintiffs,  and  that  it 
did  not  require,  as  a  matter  of  law,  a  finding  that  they  con- 
sented to  the  sale  of  the  wheat  to  the  defendant  and  received 
the  purchase  price  therefor;  (3)  that  if  the  storage  receipts  were 
intended  by  the  parties  thereto  to  cover  the  wheat  actually  in 
store,  a  misdescription  of  the  grade  thereof  in  the  receipts 
would  not,  as  between  the  parties,  affect  the  title  of  the  holder 
of  the  receipts  to  the  wheat.     Herrick  v.  Barnes,  78  Minn.  475. 

B. 

Bills  of  lading  in  name  of  bank  discounting  draft — Conversion. 

Y.,  a  warehouseman,  having  in  his  wareliouse  wheat  deposited 
by  others  for  storage,  shipped  it  without  their  consent  to  Chi- 
cago; took  bills  of  lading  in  which  the  bank  of  K.  was  named 
as  consignee ;  drew  his  drafts  on  the  parties  in  Chicago  for  whom 
the  wheat  was  destined;  procured  the  bank  to  discount  them, 
delivering  to  it  his  bills  of  lading  as  security  for  them.  The 
bank  indorsed  the  bills  in  blank,  and  forwarded  them,  with 
the  drafts,  to  its  correspondent  in  Chicago,  anrl  the  latter  on 
payment  of  the  drafts  delivered  the  bills  of  lading  to  the  drawee. 


446  MINNESOTA   DECISIONS. 

Held  that  this  did  not  render  the  bank  hable,  as  for  a  conver- 
sion, to  the  owners  of  the  wheat.  Lenthold  et  al.  v.  Fairchild  et 
al. ,35  Minn.  99. 

U. 

Building  grain  elevator  and  carrying  on  grain  business,  by  the 
state,  are  not  the  regulation  of  that  business — Unconstitutional  law. 

Laws,  1893,  ch.  30,  entitled,  "An  Act  to  provide  for  the  pur- 
chase of  a  site  and  for  the  erection  of  a  state  elevator  or  ware- 
house at  Duluth  for  public  storage  of  grain,"  etc.,  is  not  an 
exercise  of  the  police  power  of  the  state  to  regulate  the  business 
of  receiving,  weighing  and  inspecting  grain  in  elevators.  It 
has  no  relation  to  the  regulation  of  the  business,  but  provides 
for  the  state  itself  engaging  in  carrying  it  on.  Ruppe  v.  Becker, 
56  Min.  100. 

Same — In  violation  of  art.  9,  sec.  5,  of  the  Constitution. 

The  act  in  question  is  in  violation  of  the  Constitution,  art.  9, 
sec.  5,  providing  that  "the  state  shall  never  contract  any  debts 
for  works  of  internal  improvement  or  be  a  party  in  carrying 
on  such  works."     Id. 

Regulation  of  carriers — Unconstitutional  law. 

The  provision  in  Laws,  1895,  ch.  149,  sec.  11,  requiring  railroads 
and  transportation  companies  to  turn  over  to  a  storage  com- 
pany or  public  warehouse  all  property  which  the  consignee 
fails  to  call  for  or  receive  within  twenty  days  after  notice  of  its 
arrival,  is  unconstitutional  and  void.  State  of  Minnesota  v. 
Chicago,  M.  &  St.  P.  Ry.  Co.,  68  Minn.  381. 

Warehouse  for  owner's  grain — Must  have  license — Laws,  1895, 
ch.  148,  applicable  and  held  constitutional. 

The  defendant  operated  a  grain  warehouse,  in  a  village  in 
this  state,  in  which  no  grain  was  stored  but  the  defendant's  own, 
which  he  purchased  of  farmers  at  the  warehouse  where 
the  grain  was  delivered  and  where  it  was  weighed  and  graded 
by  defendant  on  his  own  scales  and  with  his  own  appliances. 
Held  that  the  business  so  carried  on  was  of  such  a  public  char- 
acter, and  sufficiently  affected  with  public  interest,  that  the 
legislature  could  require  persons  operating  such  warehouse  to 


MINNESOTA.  447 


take  out  a  license  therefor  as  provided  in  Laws,  1895,  ch.  148, 
and  that  this  requirement  was  not  repugnant  to  the  Constitu- 
tion of  the  United    States.     State  ex  rel.  Railroad  and  Ware- 
house  Commission,  etc.  v.  W.  W.  Cargill   Co.,  77   Minn    223 
aff'd  180  U.  S.  452. 


448  MISSISSIPPI   LAWS. 


CHAPTER  XXIV. 
MISSISSIPPI. 

LAWS   PERTAINING   TO   WAREHOUSEMEN. 

Sale  of  goods  for  : 

When  the  coiisiguee  or  owner  of  any  goods  or  articles  trans- 
ported on  any  railroad  cannot  be  found  or  refuses  to  receive 
the  same  or  pay  the  charges,  or  neglects  to  do  so  for  an  unrea- 
sonable time,  application  may  be  made  by  the  railroad  com- 
pany or  its  agent  to  a  justice  of  the  peace  for  an  order  of  sale; 
and  if  it  be  made  to  appear  that  the  goods  have  been  trans- 
ported by  the  company,  and  that  the  consignee  or  owner  can- 
not be  found,  or  refuses  or  neglects  to  pay  the  costs  and  charges 
for  transportation,  or  to  receive  the  goods,  the  justice  shall  issue 
an  order  directed  to  the  sheriff,  or  any  constable  or  marshal, 
directing  the  sale  of  the  goods  at  public  vendue,  at  such  time 
as  the  justice  may  direct,  and  the  payment  out  of  the  proceeds 
of  sale  of  the  charges  on  such  goods,  and  all  costs  which  have 
accrued  in  procuring  the  order  and  making  the  sale;  and  should 
there  be  a  balance  left,  it  shall  be  paid  into  the  county  treasury, 
and  the  owner  of  the  goods  may  receive  the  same  out  of  the 
treasury,  on  the  order  of  the  board  of  supervisors,  if  applied  for 
within  one  year,  but  not  afterwards.  Perishable  goods  may  be 
sold,  as  herein  provided,  according  to  the  exigency,  if  not  im- 
mediately called  for  and  taken.     Code,  Miss.  1892,  sec.  2108. 

The  same  extended  to  watercraft  and  warehonsenien  : 

The  owners  of  steamboats  and  other  watercraft,  and  ware- 
housemen, have  the  right  to  enforce  charges  for  freight  and 
storage  in  accordance  with  the  provisions  of  the  last  preceding 
section,  on  goods  which  have  been  transported  or  stored  by  them 
where  the  consignee  or  owner  cannot  be  found,  or  refuses  or 
neglects  to  pay  such  charges.     Id.  sec.  2109, 


MISSISSIPPI.  449 

Powers  of  mayor  and  hoard  of  aldernioii  : 

The  mayor  and  board  of  aldermen  of  every  city,  town,  and 
village  shall  have  the  care,  management,  and  control  of  the 
city,  town,  or  village,  and  its  i)roperty  and  finances,  and  shall 
have  power  to  enact  ordinances  for  the  ])urp(>s('s  hereinafter 
named,  and  such  as  are  not  repugnant  to  the  laws  of  the  state, 
and  such  ordinances  to  alter,  modify,  and  repeal;  and  they  shall 
have  power  to  regulate  parks,  public  grounds,  depots,  depot 
grounds,  and  places  of  storage  of  freight  and  goods  within  cor- 
porate limits,  and  to  provide  for  and  regulate  the  construction 
and  passage  of  railways  and  street  railroads  through  the  streets, 
avenues,  alleys,  or  lanes,  and  public  grounds  of  the  nuinicipal- 
ity;  but  a  person  or  company  to  whom  the  right  and  privilege 
shall,  at  any  time,  be  granted  by  the  authorities  of  a  city,  town, 
or  village  to  construct  railroads  and  street  railroads  through  the 
municipality,  shall  not  have  the  exclusive  privilege  to  do  so. 
/rf.  sees.  2925,  2931. 

A  privilege  tax  was  levied  upon  public  warehouses  by  ch.  5, 
Laws  of  Miss.  1898,  p.  29,  as  follows: 

On  each  public  warehouse  where  storage  is  charged,  in 

villages  of  three  hundred  inhabitants  or  less S2 .  50 

In  towns  or  villages  of  five  hundred  or  less  inhabitants, 

and  not  less  than  three  hundred  inhabitants 5.00 

In  towns  of  over  five  hundred  and  less  than  one  thousand 

inhabitants 10.00 

In  towns  of  over  one  thousand  inhabitants  and  less  than 

two  thousand  inhabitants 15.00 

In  cities  or  towns  of  over  two  thousand  inhabitants 20.00 

29 


MISSISSIPPI    DECISIONS. 

DECISIONS  AFFECTING  WAREHOUSEMEN. 

B. 

Ordinary  care  and  diligence. 

It  is  only  reciuired  of  a  warehouseman  that  he  should  exer- 
cise reasonable  and  ordinary  tliligence  in  the  keeping  and  }jrescr- 
vation  of  articles  intrusted  to  him,  such  as  men  exercise  in  their 
own  private  affairs.  Cowles  v.  Pointer,  26  Miss.  253;  Archer  et 
al.  V.  Sinclair  et  al.,  49  Miss.  343;  III.  Cent.  R.  R.  Co.  v.  Tron- 
stine  &  Co.,  64  Miss.  834;  Merchant's  Wharf  boat  Assn.  v.  Wood 
&  Co.,  64  Miss.  661. 

Same — Construction  of  icarehouse — Requirements. 

A  warehouseman  is  not  required  by  law  to  construct  his 
buildings  secure  from  all  possible  contingencies,  but  they  are 
sufficient  if  reasonably  and  ordinarily  safe  against  ordinary  and 
common  occurrences.     Cowles  v.  Pointer,  26  Miss.  253. 

H. 

Lien — Lost  by  surrender  of  goods — Warehouseman  has  not  a 
genial  lien  for  balance  due. 

The  lien  of  a  warehouseman  is  a  conmion-law  lien,  which  is 
a  creature  of  policy,  and  is  a  specific  or  particular  lien  which 
attaches  to  each  separate  bailment  and  is  lost  when  the  particu- 
lar articles  of  each  bailment  are  delivered  to  the  bailor,  or  his 
assignee.  Therefore,  where  the  plaintiff  sued  the  defendant, 
in  replevin,  for  the  recovery  of  fifty-nine  bales  of  cotton,  alleg- 
ing that  he  had  made  tender  of  all  charges  due  thereon  and  the 
warehouseman  refused  to  deliver  unless  plaintiff  also  paid 
charges  upon  cotton  pre\'iously  stored  and  delivered,  judgment 
was  given  for  the  plaintiff.  Shingleur-J ohnson  &  Co.  v.  Canton 
Cotton  Warehouse  Co.,  78  Miss.  875. 

Same — Section  2682,  Code,  1892,  construed. 

The  contention  that  a  warehouseman,  under  section  2682, 
Code,  1892,  has  a  lien  on  cotton  niised  in  this  state,  for  storage, 
and  other  charges  connected  therewith,  is  not  supported  by  any 
reasonable  construction  of  that  statute.     Id. 


MISSISSIPPI.  461 

K. 

Property  taken  under  legal  process— Duty  and  liability  of  bailee. 

If  cotton,  stored  in  a  warehouse,  be  seized,  under  legal  proc- 
ess, against  any  other  pcirson  than  the  wareliousenian  or  the 
owner,  and  the  warehouseman  give  notice  of  such  seizure  and 
of  all  facts  known  to  him,  or  which  might  have  been  known  to 
him  by  the  exercise  of  orcUnary  care  and  inquiry,  to  the  owner, 
the  warehouseman  is  relieved  from  liability;  and,  in  the  absence 
of  the  claim  of  other  parties,  he  would  be  justified  in  acting  as 
if  the  person,  to  whom  the  receipts  had  been  given,  liad  con- 
tinued owner.  The  seizure  of  proi)erty  under  legal  process 
against  the  owner  is  a  legal  discharge  of  the  bailee.  Mortimore 
v.  Ragsdale,  62  Miss.  86. 

L. 

Replevin — When  bailor  cannot  ?7iaintain. 

A  bailor  cannot  maintain  an  action  of  replevin  for  the  use  of 
the  pledgee,  of  his  warehouse  receipts,  against  a  warehouseman 
with  whom  the  property  is  stored.  The  pledgee  alone  can 
maintain  rej^levin  or  trover  against  the  warehouseman.  Selleck 
V.  Macon  Compress  Co.,  72  Miss.  1019;  Mortimore  v.  Ragsdale, 
62  Miss.  86. 

N. 

What  constitutes  prima  facie  case. 

Where  the  plaintiff  in  an  action  against  a  warehouseman  had 
introduced  the  warehouse  receipts  and  proved  a  demand  made 
ujxm  the  defendant,  or  his  agent,  for  the  property  therein  de- 
scribed, at  any  time  before  the  institution  of  the  suit,  he  had 
established  a  prima  facie  right  to  recover.  Mortimore  v.  Rags- 
dale,  62  Miss.  86. 

p. 

Same — Negligence  of  carrier  employed  by  owner  cannot  be  im- 
puted to  latter — Instruction  to  jury. 

The  owner  of  cotton  shipped  the  same,  by  a  carrier  who  had 
an  arrangement  with  the  defendant  wareliouseman,  under  which 
all  cotton  received  by  it  should  be  stored  with  the  defendant, 
if  necessary,  to  await  the  arrival  of  a  steamboat.  The  evi- 
dence showed  that  the  owner  knew  nothing  of  this  arrange- 
ment, and  that  the  warehouse  containing  the  cotton  was  de- 


MISt^ISSIIMM    1»K('IS10NS. 

-gtroyed  without  negligence  on  the  part  of  tlie  warehouseman. 
In  an  action  1)}'  the  owner  against  the  warehouseman,  the  con- 
tention was  made  by  the  defendant  tliat  if  the  place  where  the 
cotton  was  stored  w^as  dangerous,  it  was  known  to  the  railroad 
company,  and,  as  it  was  the  agent  of  the  ownei',  such  knowl- 
edge was  imputable  to  the  owner.  It  was  JichI  that  this  con- 
tention could  not  be  sustained.  It  was  furtlier  held  that  an 
instruction  to  the  jury  that  the  conditions  and  surroundings  of 
the  place  m  which  the  cotton  was  stored  constituted  a  warning 
to  the  defendant  of  the  danger  of  fire,  and  that  although  the  fire 
did  not  originate  from  either  of  the  enumerated  conditions  that 
the  defendant  was  nevertheless  responsible  therefor,  was  errone- 
ous.    Merchants'  Wharfhoat  Assn.  v.  Wood  d'  Co.,  64  Miss.  661. 

Wareho^ise  receipts — Negotiability — Transfer  without  indorse- 
ment. 

A  w^arehouse  receipt  provided  that  it  Avas  transferable  only 
by  indorsement  and  delivery  thereof.  In  a  case  where  the 
property,  rejjresented  by  such  a  receipt,  was  sold,  and  there  was 
no  indorsement  of  the  receipt  made,  it  w'as  held  that,  as  be- 
tw^een  the  parties,  this  was  a  valid  transfer  of  the  property. 
Shingleur-J ohnson  dc  Co.  v.  Canton  Cotton  Warehouse  Co.,  78 
Miss.  875. 

Same— Delivery  without  the  return  of  receipts  to  true  owner — 
Burden  of  proof. 

Property  stored  in  a  warehouse,  for  w'hich  A  held  the  re- 
ceipt, is  sold  by  him  to  B,  but  the  receipts  therefor  w^ere  not 
transferred  to  B.  In  such  a  case,  it  was  held  that  a  delivery 
by  the  warehouseman  to  B,  of  the  property  represented,  \vas 
legal,  notwithstanding  that  the  receipts  were  not  taken  up  by 
the  warehouseman  and  were  not  indorsed  to  B,  for  such  de- 
livery w^as  one  to  the  true  owner.  But  the  burden  of  estab- 
lishing the  right  of  B  to  receive  the  property  was  upon  the 
warehouseman.     Mortimore  v.  Ragsdale,  62  Miss.  86. 

Sayne — Action  by  assignee  of  unindorsed  receipt — Objection 
must  be  made  at  trial. 

The  plaintiff  purchased  certain  property  and  obtained  ware- 


MISSISSIPPI.  453 

house  receipts  representing  the  same.  The  receipts  were  not 
indorsed  to  him.  In  an  action  of  replevin  brought  by  him 
against  the  warehouseman  for  the  recovery  of  the  jiroperty,  it 
was  held,  by  tlie  apj^elhite  court,  that,  as  no  objection  had  been 
made  in  the  trial  court  to  the  receipts  l)ecause  not  indorsed, 
objection  now  made,  for  the  first  time,  comes  too  late.  Shing- 
leur-Johnson  &  Co.  v.  Canton  Cotton  Warehouse  Co.,  78  Miss.  875. 

R. 

Bill  of  lading — Exceptions  therein. 

Common  carriers  may  obviate  the  rigor  of  the  law  holding 
them  liable  as  insurers  of  goods  intrusted  to  them  by  inserting 
in  the  bill  of  lading  proper  exceptions.  Gilmore  v.  Carman,  1 
S.  &  M.  279. 

Same — Meaning  of  inevitable  accident.'' 

A  provision  in  a  bill  of  lading  providing  that  a  carrier  was 
not  responsible  for  loss  resulting  from  "inevitable  accident" 
held  that  this  phrase  was  synonymous  with  "act  of  God." 
Neal  v.  Saunderson,  2  S.  &  M.  572. 

Same — Not  conclusive  as  to  ownership. 

The  names  of  the  consignor  and  the  consignee,  stated  in  a  bill 
of  lading,  are  not  conclusive  as  to  the  ownership  of  the  property 
represented  thereby.  Testimony  will  be  received  to  establish 
the  facts  as  to  the  real  ownership.  Fast  v.  Canton,  A.  &  N. 
R.  R.  Co.,  77  Miss.  498. 


40-t  MISSOURI    LAWS. 


CHAPTER  XXV. 
MISSOURI. 

LAWS   PERTAINING   TO  WAREHOUSEMEN. 

Warehouses  and  storehouses  declared  public  warehouses  : 

That  all  warehouses  or  storehouses  situated  in  cities  of  over 
fifty  thousand  inhabitants,  and  wherein  other  property  than 
grain  is  stored  for  a  compensation,  are  declared  to  be  public 
warehouses.     Laws,  1895,  p.  282. 

License  for  public  warehouse  : 

The  proprietor,  lessee  or  manager  of  any  public  warehouse 
provided  for  by  this  chapter  shall  be  required,  before  transact- 
ing any  business  in  such  warehouse,  to  procure  from  the  circuit 
court  of  the  county  in  which  such  warehouse  is  situated — or  if 
to  procure  license  for  a  public  warehouse  in  the  city  of  St.  Louis, 
application  shall  be  made  to  the  circuit  court  of  said  city — a 
license  permitting  such  proprietor,  lessee  or  manager  to  trans- 
act business  as  a  public  warehouseman  under  the  laws  or  this 
state,  which  license  shall  be  issued  by  the  clerk  of  said  court 
upon  written  application,  which  shall  set  forth  the  location  and 
name  of  such  warehouse,  and  the  individual  name  of  each  per- 
son interested  as  owner  or  principal  in  the  management  of  the 
same;  or  if  the  warehouse  be  owned  by  or  managed  by  a  corpora- 
tion, the  names  of  the  president,  secretary  and  treasurer  of  such 
corporation  shall  be  stated;  and  the  said  license  shall  give  au- 
thority to  carry  on  and  conduct  the  business  of  a  public  ware- 
house, other  than  a  warehous(^  for  the  storage  of  grain,  in  ac- 
cordance with  the  laws  of  this  state  and  shall  be  revocable  by 
the  said  court  upon  a  summary  proceeding  before  the  court, 
upon  the  complaint  of  any  person,  in  writing,  setting  forth  the 
particular  violation  of  the  law  to  be  sustained  by  satisfactory 
proof,  to  be  taken  in  such  manner  as  may  be  directed  by  the 
court.     Id.  p.  282. 


MISSOURI.  455 

Public  warehouseman  to  give  bond  : 

The  person  or  persons  receiving  a  license  under  the  provisions 
of  this  chajiter  shall  file  with  the  clerk  of  the  court  granting 
the  same,  a  bond  to  the  people  of  the  state  of  Missouri,  with 
good  and  sufhcient  security,  to  be  approved  by  said  court,  in 
the  penal  sum  of  twenty-five  thousand  dollars,  conditioned  for 
the  faithful  performance  of  his  or  their  duties  as  public  ware- 
houseman or  warehousemen,  and  as  security  for  the  payment 
of  all  penalties  and  dnmafj^es  found  and  adjudged  by  due  course 
of  law,  for  violation  of  any  clause  of  this  chapter,  or  of  chap- 
ter 79  of  the  Revised  Statutes  of  Missouri,  1899,  and  his  or  their 
full  and  unreserved  compliance  with  the  laws  of  this  state  in 
relation  thereto.     Id.  p.  2S2. 

Transacting  business  without  a  license — Penalty  : 

Any  person  or  persons  who  shall  transact  within  a  city  of 
over  fifty  thousand  inhabitants,  the  business  of  storing  for  com- 
pensation other  property  than  grain,  without  first  procuring 
license  and  giving  a  bond  as  herein  provided,  or  who  shall  con- 
tinue to  transact  such  business  after  such  license  has  been  re- 
voked, or  such  bond  may  have  become  void  or  found  insuffi- 
cient security  for  the  penal  sum  in  which  it  is  executed,  by  the 
court  approving  the  same  (save  only  that  he  may  be  permitted 
to  deliver  property  previously  stored  in  such  warehouse),  shall 
be  guilty  of  a  misdemeanor,  and  upon  conviction,  be  fined  in  a 
sum  not  less  than  $100  nor  more  than  $500  for  each  and  every 
day  such  business  is  carried  on;  and  the  court  that  issued  may 
refuse  to  renew  any  license,  or  grant  a  new  one,  to  any  person 
whose  license  has  been  revoked,  within  one  year  from  the  time 
same  was  revoked.     Id.  p.  282. 

Property  to  be  sold  for  storage  charges : 

If  the  owner  of  any  goods,  merchandise  or  other  property 
shall  store  the  same  in  any  warehouse  created  by  this  chajiter. 
and  shall  not  pay  the  storage  charges  ujion  the  same  within  a 
period  of  sixty  days  after  said  charges  have  become  due,  it  shall 
be  lawful  for  the  warehouseman  to  sell  such  goods,  merchandise 
or  other  property,  or  so  much  thereof  as  will  pay  all  storage 
and  other  charges,  at  auction  to  the  highest  bidder,  first  having 


450  MISSOURI   LAWS. 

given  either  twenty  days'  notice  by  advertisement  in  a  daily 
paper,  or  four  weeks'  notice  by  advertisement  in  a  weekly  paper, 
of  the  time  and  place  of  the  sale,  and  having  further  given  notice 
to  the  owner  by  mailing  him,  at  least  twenty  days  before  the  day 
of  sale,  if  his  address  is  known,  a  notice  of  the  time  and  place  of 
sale;  and  if  there  be  any  sur])lus  left  after  paying  the  storage 
charges,  cost  of  advertising  and  all  other  just  and  reasonable 
charges,  the  same  shall  be  paid  over  to  the  rightful  owner  of 
said  property  at  any  time  thereafter,  upon  demand  being  made 
therefor  within  sixty  days;  and  if  no  such  demand  for  such 
surplus  is  made  within  sixty  days  after  the  time  of  such  sale, 
then  said  surplus  shall  be  paid  into  the  county  treasury,  sub- 
ject to  the  order  of  the  owner.     Id.  p.  282. 

Warehouseman,  etc.,  not  to  issue  receipt  until  goods  ac- 
tually in  store  : 

No  warehouseman,  wharfinger,  or  other  person,  shall  issue 
any  receipt  or  other  voucher  for  any  goods,  wares,  merchandise, 
grain,  flour,  or  other  produce  or  commodity,  to  any  person  or 
persons  purporting  to  be  the  holder,  owner  or  owners  thereof, 
unless  such  goods,  wares,  merchancUse,  grain,  or  other  produce 
or  commodity,  shall  have  been  actually  received  into  store  or 
upon  the  premises  of  such  warehouseman,  wharfinger,  or  other 
person,  and  shall  be  in  the  store  or  on  the  premises  aforesaid 
and  under  his  control  at  the  time  of  issuing  such  receipt.  R.  S. 
1889,  sec.  739^. 

Not  to  issue  any  receipt  for  money  loaned,  etc.,  until 
goods  actually  in  store  : 

No  warehouseman,  wharfinger,  or  other  person,  shall  issue  any 
receipt  or  other  voucher  upon  any  goods,  wares,  merchandise, 
grain,  flour,  or  other  produce  or  commodity,  to  any  person  or 
persons,  for  any  money  loaned,  or  other  indebtedness,  unless 
such  goods,  wares,  merchandise,  grain,  flour,  or  other  produce 
or  conunodity,  shall  be,  at  the  time  of  issuing  such  receipt,  in 
the  custody  of  such  warehouseman,  wharfinger,  or  other  person, 
and  shall  be  in  store  or  upon  the  premises  and  under  his  control 
at  the  time  of  issuing  such  receipt  or  other  voucher,  as  aforesaid. 
Id.  sec.  740. 


MISSOURI.  457 

Not  to  issue  second  receipt— When  : 

No  warehouseman,  wharfinger,  or  other  person,  shall  issue  any 
second  or  duplicate  receipt  for  any  goods,  waics,  merchandise, 
grain,  flour,  or  other  produce  or  commodity,  while  any  former 
receipt  for  any  such  goods,  wares,  merchandise,  grain,  (lour,  or 
other  i)roduc(>  or  ccmimodity,  as  aforesaid,  or  any  i)ar1  thereof, 
shall  be  outstanding  and  uncancelled,  without  writing  across  the 
face  of  the  same  duplicate.     Id.  sec.  741/i. 

Not  to  sell,  etc.,  j^oods  without  written  assent  of  person 
holding  receipt : 

No  warehouseman,  wharfinger,  or  other  person,  shall  sell  or  in- 
cumber, ship,  transfer,  or  in  any  manner  remove,  or  permit  to  be 
shipped,  transferred  or  removed  beyond  his  control,  any  goods, 
wares,  merchandise,  grain,  fiour,  or  other  produce  or  commodity, 
for  which  a  receipt  shall  have  been  given  by  him,  as  aforesaid, 
whether  received  for  storing,  shipping,  grintling,  manufacturing, 
or  other  purjjose,  without  the  written  assent  of  the  person  or 
persons  holding  such  receipt.     Id.  sec.  742^■. 

Not  to  give  shipping  receipt  until  goods  are  actually  on 
boat,  etc. : 

No  master,  owner  or  agent  of  any  boat  or  vessel  of  any  de- 
scription, forwarder,  or  ofhcer  or  agent  of  any  railroad,  trans- 
fer or  transportation  company,  or  other  person,  shall  sign  or 
give  any  bill  of  lading,  receii)t  or  other  voucher  or  document 
for  any  merchandise  or  property,  by  which  it  shall  appear  that 
such  merchandise  or  property  has  been  shipped  on  board  of 
any  boat,  vessel,  railroad  car  or  other  vehicle,  unless  the  same 
shall  have  been  actually  shijjpetl  and  put  on  board,  and  shall  be 
at  the  time  actually  on  board  or  delivered  to  such  boat,  vessel, 
car  or  other  vehicle,  to  be  carried  and  conveyed  as  expressed  in 
such  bill  of  lading,  receipt  or  other  voucher  or  document.  Id. 
sec.  743y. 

Receipts,  bills  of  lading,  etc.,  declared  negotiable : 

All  receipts  issued  or  given  by  any  warehouseman,  or  other 
person  or  firm,  and  all  bills  of  lading,  transportation  receipts 
and  contracts  of  affreightment,  issued  or  giv(>n  by  any  [lerson. 
})oat,  railroad  or  transportation  or  transfer  company,  for  goods. 


458  MISSOURI    LAWS. 

wares,  merchandise,  grain,  Hour  or  other  produce,  shall  be  and 
are  hereby  made  negotial)le  by  written  indorsement  thereon,  and 
delivery  in  the  same  manner  as  bills  of  exchange  and  promissory 
notes;  and  no  printed  or  written  conditions,  clauses  or  provi- 
sions inserted  in  or  attachetl  to  any  such  receipts,  bills  of  lading 
or  contracts,  shall  in  any  way  limit  the  negotiability  or  affect 
any  negotiation  thereof,  nor  in  any  manner  imj)air  the  right 
and  duties  of  the  parties  thereto,  or  persons  interested  therein; 
and  every  such  condition,  clause  or  provision  j^urporting  to 
limit  or  affect  the  rights,  duties  or  liabilities  created  or  declared 
in  this  chapter,  shall  be  void  and  of  no  force  or  effect.  Id. 
sec.  744A-. 

How  transferred — Lien  created — Exemption  : 

Warehouse  receipts  given  by  any  warehouseman,  wharfinger 
or  other  person  or  firm,  for  any  goods,  wares,  merchandise,  grain, 
flour  or  other  produce  or  commodity,  stored  or  deposited,  and 
all  bills  of  lading  and  transportation  receipts  of  every  kind, 
given  by  any  carrier,  boat,  vessel,  railroad,  transportation  or 
transfer  company,  may  be  transferred  by  indorsement  in  writ- 
ing thereon,  and  the  delivery  thereof  so  indorsed;  and  any  and 
all  persons  to  whom  the  same  may  be  so  transferred  shall  be 
deemed  and  held  to  l)e  the  owner  of  such  goods,  wares,  mer- 
chandise, grain,  flour  or  other  produce  or  commodity,  so  far  as 
to  give  validity  to  any  pledge,  lien  or  transfer  given,  made  or 
created  thereby,  as  on  the  faith  thereof,  and  no  property  so 
stored  or  deposited,  as  specified  in  such  bills  of  lading  or  receipts, 
shall  be  delivered,  except  on  surrender  and  cancellation  of  such 
receipts  and  bills  of  lading:  Provided,  however,  That  all  such 
receipts  and  bills  of  lading,  which  shall  have  the  words  not  ne- 
gotiable plainly  written  or  stamped  on  the  face  thereof,  shall 
be  exempt  from  the  provisions  of  this  act.     Id.  sec.  745L 

Penalty  for  violation  of  the  provisions  of  this  chapter  : 

Any  warehouseman,  wharfinger,  forwarder  or  other  i)erson 
who  shall  violate  any  of  the  provisions  of  this  chajjter  shall  be 
deemed  guilty  of  a  criminal  offense,  and,  upon  indictment  and 
conviction,  shall  be  fined  in  any  sum  not  exceeding  five  thou- 
sand dollars,  or  imprisonment  in  the  penitentiary  or  this  state 


MISSO['RI.  459 

not  exceeding  five  years,  or  both;  aiul  all  and  cNCM'y  person  or 
persons  aggrieved  by  the  N-iolation  of  any  of  the  jirovisions  of 
this  chapter  may  have  and  maintain  an  action  at  law  against 
the  person  or  persons,  corporation  or  corporations,  violating  any 
of  the  provisions  of  this  chapter,  to  recover  all  damages,  imme- 
diate or  conso([ueiitial,  which  ho  or  they  ma}'  hav(^  sustaiiieil 
by  reason  of  any  such  violation,  as  aforesaid,  before  any  court  of 
competent  jurisdiction,  whether  such  person  or  persons  shall 
have  been  convicted  of  fraud,  as  aforesaid,  under  this  chapter, 
or  not.     Id.  sec.  746m. 

This  chapttM*  applicable  to  bills  of  lading  : 

All  the  provisions  of  this  chapt(!r  shall  apply  and  be  appli- 
cable to  bills  of  lading,  and  to  all  persons  or  corporations,  their 
agents  or  servants,  that  shall  or  may  issue  bills  of  lading  of  any 
kind  or  description,  the  same  as  if  the  words  forwarder  and  bills 
of  lading  were  mentioned  in  every  section  of  this  chapter.  Id. 
sec.  747n. 

Exception  as  to  applicsitioii  : 

So  much  of  the  prec(Mling  sections  of  this  chapter  as  forbids 
the  delivery  of  property  except  on  surrender  and  cancellation 
of  the  original  receipt  or  bill  of  lading,  or  the  indorsement  of 
such  delivery  thereon  in  case  of  partial  delivery,  shall  not  apply 
to  property  replevied  or  removed  by  operation  of  law.  Id. 
sec.  748o. 

Railroad  and  warehouse  commissioners  : 

The  present  board  of  railroad  connuissioners  of  the  state  of 
Missouri  shall  be  charged  with  the  supervision  of  the  execution 
of  the  details  of  this  article,  and  shall  hereafter  be  known  as  the 
board  of  railroad  and  warehouse  commissioners  of  the  state  of 
Missouri.     Id.  sec.  5605. 

Board  to  appoint  chief  inspector — Duties  : 

It  shall  be  the  duty  of  the  board  of  railroad  and  warehouse 
commissioners  to  appoint  a  suitable  person,  who  shall  not  be  a 
member  of  the  board  of  trade,  who  shall  not  be  interested,  either 
directly  or  indirectly,  in  any  warehouse  in  this  state,  who  shall 
be  a  grain  expert,  and  who  shall  be  known  as  the  chief  inspector 


460  MISSOURI   LAWS. 

of  grain  for  the  state  of  Missouri,  whose  term  of  service  as  such 
shall  continue  for  two  years  from  the  date  of  his  appointment 
under  this  article,  and  further  terms  of  ofhce  of  the  cliief  in- 
spector shall  be  for  four  years,  commencing  from  the  date  of 
expiration  of  service  of  the  first  incumbent.  It  shall  be  the 
duty  of  the  chief  inspector  to  have  a  general  suj^ervision  of  the 
inspection  of  grain,  as  required  by  this  article  or  laws  of  this 
state  under  the  immediate  direction  of  the  board  of  railroad  and 
warehouse  commissioners  of  the  state  of  Missouri.  Id.  sec. 
5606. 

Public  warehouses : 

All  buildings,  elevators  or  warehouses,  wherever  state  grain 
inspection  may  be  established  by  the  state  board  of  railroad  and 
warehouse  commissioners  in  this  state,  and  having  a  capacity 
of  not  less  than  fifty  thousand  bushels,  erected  and  operated, 
or  which  hereafter  may  be  erected  and  operated,  by  any  person 
or  persons,  association,  copartnership  or  corporation,  for  the 
purpose  of  storing  the  grain  of  different  owners  for  a  compensa- 
tion, are  hereljy  declared  public  warehouses,  and  the  person  or 
persons,  associations,  copartnership  or  corporation  owning  such 
building  or  buildings,  elevator  or  elevators,  warehouse  or  ware- 
houses, which  are  now  or  may  hereafter  be  located  or  doing 
business  within  this  state,  as  above  described,  whether  said 
owners  of  operators  reside  within  this  state  or  not,  are  public 
warehousemen  within  the  meaning  of  this  section.  Id.  sec. 
5607,  amended.  Laws,  1893,  p.  180g. 

License  for  public  warehouse  : 

The  proprietor,  lessee  or  manager  of  any  public  warehouse 
shall  be  required,  before  transacting  any  business  in  such  ware- 
house, to  procure  from  the  circuit  court  of  the  county  in  which 
such  warehouse  is  situated — or  if  to  procure  license  for  a  public 
warehouse  in  the  city  of  St.  Louis,  application  shall  be  made 
to  the  circuit  court  of  said  city — a  license  permitting  such  pro- 
prietor, lessee  or  manager  to  transact  business  as  a  public  ware- 
houseman under  the  laws  of  this  state,  which  license  shall  be 
issued  by  the  clerk  of  said  court  upon  written  application,  which 
shall  set  forth  the  location  anrl  name  of  such  warehouse,  and  the 


Missoiui.  461 

individual  name  of  each  person  inleresled  a.s  owner  or  prnicipal 
in  the  management  of  tlie  same,  or,  if  the  warehouse  be  owned 
by  or  managed  b}^  a  corporation,  the  names  of  tlic  president, 
secretary  and  treasurer  of  such  corporation  sliall  be  stated;  and 
the  said  license  shall  give  authority  to  carry  on  and  conduct  the 
business  of  a  i)ublic  warehouse  in  accordance  with  the  laws  of 
this  state,  and  shall  be  revocable  by  the  said  court  u])on  a  sum- 
mary proc(^eding  before  the  court  upon  the  complaint  of  any 
person,  in  writing,  setting  forth  the  particular  violation  of  law, 
to  be  sustained  by  satisfactory  proof  to  be  taken  in  such  manner 
as  may  be  tlirected  by  the  court.     Id.  sec.  560S. 

Public  wareliouseiueii  to  f?ive  bond  : 

The  person  or  persons  receiving  a  license  as  herein  provided 
shall  file  with  the  clerk  of  thc^  court  granting  the  same  a  bond 
to  the  people  of  the  state  of  Missouri,  with  good  and  sufiicient 
security  to  be  a))})roved  by  said  court,  in  the  penal  sums  as  per 
the  following  schedule  of  capacities  by  measurement:  For  a 
public  warehouse  with  a  capacity  not  exceeding  50,000  bushels, 
$2,500.  For  a  public  warehouse  with  a  capacity  of  more  than 
50,000  bushels  and  not  exceeding  100,000  bushels,  $5,000.  For 
a  public  warehouse  with  a  capacity  of  more  than  100,000  and 
not  exceeding  200,000  bushels,  $10,000.  For  a  public  ware- 
house with  a  capacity  of  more  than  200,000  bushels  and  not 
exceeding  300,000  bushels,  $15,000.  For  a  public  warehou.se 
with  a  capacity  of  more  than  .300,000  bushels  and  not  exceed- 
ing 400,000  bushels,  $20,000.  For  a  public  warehouse  with  a 
capacity  of  more  than  400,000  bushels  and  not  exceeding  500,000 
bushels,  $25,000.  For  a  public  warehouse  with  a  capacity  of 
more  than  500,000  bushels  and  not  exceeding  750,000  bushels, 
$37,500.  For  a  public  warehouse  with  a  capacity  of  more  than 
750,000  bushels  and  not  exceeding  1,000,000  bushels,  $50,000. 
For  a  public  warehouse  with  a  capacity  exceeding  1,000,000 
bushels,  $100,000 — conditioned  for  the  faithful  performance  of 
his  or  their  duties  as  public  warehouseman  or  warehousemen, 
as  security  for  any  penalites  found  by  due  course  of  law  for  vio- 
lation of  any  clause  of  this  article,  and  his  or  tJieir  full  and  un- 
reserved compliance  with  the  laws  of  this  state  in  relation 
thereto.     Id.  sec.  5609. 


462  MissoriM   LAWS. 

Trausactiiig  business  without  a  license — Penalty : 

Any  person  or  persons  who  shall  transact  the  business  of  public 
warehouseman  or  warehousemen  without  first  procuring  license 
and  giving  a  bond  as  herein  provided,  or  who  shall  continue  to 
transact  such  business  after  such  license  has  been  revoked  or 
such  bond  may  have  become  void  or  found  insufficient  security 
for  the  penal  sum  in  which  it  is  executed  by  the  court  approv- 
ing the  same,  save  only  that  he  may  be  permitted  to  deliver 
property  previously  stored  in  such  warehouse,  shall  be  guilty  of 
a  misdemeanor,  and  upon  conviction  be  fined  in  a  sum  not  less 
than  $100  nor  more  than  $500  for  each  and  every  day  such 
business  is  carried  on;  and  the  court  that  issued  may  refuse  to 
renew  any  license  or  grant  a  new  one  to  any  person  or  persons 
whose  license  has  been  revoked  within  one  year  from  the  time 
same  was  revoked.     Id.  sec.  5610. 

Duties  of  public  warehousemen : 

It  shall  be  the  duty  of  the  person  or  persons  doing  a  public 
warehouse  business  under  this  article  to  receive  for  storage  any 
grain  that  may  be  tendered  to  him  or  them  in  the  usual  manner 
with  which  warehouses  are  accustomed  to  receive  the  same  in 
the  ordinary  and  usual  course  of  business,  and  not  to  discrimi- 
nate between  persons  desiring  to  avail  themselves  of  warehouse 
facilities,  and  that  the  schedule  of  charges  for  such  warehouse 
service  shall  be  uniform,  regardless  of  quantities  of  lots  so  of- 
fered or  received.     Id.  sec.  5611. 

Grain  to  be  inspected  : 

Receipts  of  grain  by  public  warehouses  in  all  cases  shall  be 
inspected  and  graded  by  a  duly  authorized  inspector,  and  shall 
be  stored  with  grain  of  a  similar  grade,  received  as  near  the 
same  time  as  may  be;  but  if  the  owner  or  consignee  so  requests 
and  the  warehouseman  consents  thereto,  his  grain  of  the  same 
grade  may  be  kept  in  a  bin  by  itself  apart  from  that  of  the  gen- 
eral stock  of  the  warehouse,  which  bin  shall  be  marked  "special," 
with  the  name  of  the  owner  and  with  the  quantity  and  grade  of 
same,  and  the  warehouse  receipt  issued  for  the  same  shall  state 
upon  its  face  that  the  grain  is  stored  in  a  special  bin,  giving  the 
number  of  same  and  the  quantity  and  grade  of  the  grain  so 
stored.     Id.  sec.  5612. 


MISSULKl.  468 

No  grain  to  be  delivered  unless  inspected  : 

No  grain  yluill  Ix'  dclivcicd  from  a  public  warehouse  consti- 
tuted by  this  article  unless  it  be  inspected  by  u  duly  authorized 
inspector,  and  found  to  be  of  grade  called  for  by  receipt  pre- 
sented for  such  delivery.     Id.  sec.  5613. 

W.arehonsenian  shall  not  mix  i?rain,  etc. : 

Public  warehousemen  shall  not  mix  any  grain  of  different 
grades  together,  nor  select  or  mix  different  (qualities  of  the 
same  grade  for  the  purpose  of  storing  or  delivering  the  same, 
nor  shall  they  deliver  or  attempt  to  deliver  grain  of  one  grade 
for  grain  of  another  grade,  nor  in  any  way  tamper  with  grain 
while  in  a  public  warehouse  in  his  oi-  their  possession  or  custody, 
nor  permit  the  same  to  be  done  by  others  with  the  view  or  re- 
sult of  profit  to  any  one;  and  in  no  case  shall  grain  of  different 
grades,  either  from  the  general  stock  or  from  special  bins,  be 
mixed  together  while  in  store  or  control  of  such  public  ware- 
housemen :  Provided,  that  the  provisions  of  this  section  shall  not 
apply  to  grain  in  such  warehouse  belonging  to  the  owner, 
lessee  or  manager  thereof;  and  provided  further,  that  any  public 
warehouseman  shall,  on  the  written  request  of  the  owner  of  any 
grain  stored  in  a  special  bin,  upon  the  j)roduction  of  the  receipt 
thereof,  and  the  indorsement  of  such  written  request  on  such 
receipt,  be  rec^uired  to  dry,  clean  or  otherwise  change  the  con- 
dition or  value  of  any  such  lot  of  grain,  and  sairl  warehousemen 
shall  then  issue  a  new  receipt,  correctly  describing  the  amount 
and  grade  of  such  grain.  Id  sec.  5614,  amended,  Laws,  1893, 
p.  180. 

May  run  grain  throngh  machinery,  when  : 

Whenever  it  may  be  necessary,  in  order  to  preserve  the  con- 
dition of  any  bin  or  lot  of  grain  belonging  to  any  person  stored 
in  a  public  warehouse,  to  run  said  grain  through  machinery  to 
air,  clean  or  otherwise  improve  its  condition,  and  it  is  so  desired 
by  the  owner,  this  shall  be  done,  but  in  such  manner  as  will  in- 
sure the  contents  of  each  bin  or  lot  intact,  and  of  the  same  grade 
as  when  stored;  but  this  shall  not  be  done  except  under  the 
supervision  of  an  authorized  inspector  under  this  article.  Id. 
sec.  5615,  amended.  Laws,  1893,  p.  180. 


464  AnssouRi  laws. 

Graiu  uot  to  be  received  unless  sufticient  room  : 

Nothing  in  this  article  shall  be  construed  so  as  to  compel  the 
receipt  of  grain  into  any  warehouse  in  which  there  is  not  suffi- 
cient room  to  accommodate  or  store  it  properly,  or  in  cases 
where  such  warehouse  is  necessarily  closed.     Id.  sec.  5616. 

Shall  uot  receive  aud  mix  graiu  until  inspected  and  graded  : 

In  all  places  where  there  are  legally  appointed  inspectors  of 
grain,  no  proprietor  or  manager  of  a  public  warehouse  shall  be 
permitted  to  receive  any  grain  and  mix  the  same  with  grain  of 
other  owners  in  the  storage  thereof,  or  stored  in  special  bins, 
until  the  same  shall  have  been  inspected  and  graded  by  such 
inspector.     Id.  sec.  5617. 

Shall  not  euter  combination  : 

No  warehouseman,  agent  or  manager  of  a  public  warehouse 
shall  enter  into  any  combination,  agreement  or  understanchng 
with  any  railroad,  steamboat,  transfer  or  other  carrying  corpo- 
ration, or  with  any  person  or  persons,  by  which  the  property 
of  any  person  is  to  be  delivered  to  any  {niblic  warehouse  for 
storage,  or  other  purpose,  contrary  to  the  direction  of  the  owner, 
his  agent  or  assignee.     Id.  sec.  5618. 

To  issue  receipts,  when — How  numbered  : 

Upon  application  of  the  owner  or  consignee  of  grain  stored  in 
a  public  warehouse,  the  same  being  accomp^mied  with  evidence 
that  all  charges  which  may  be  a  lien  upon  such  grain,  including 
charges  for  inspection,  have  been  paid,  the  warehousemen  shall 
issue  to  the  person  entitled  thereto  a  warehouse  receipt  there- 
for, subject  to  the  order  of  the  owner  or  consignee,  which  receipt 
shall  bear  date  corresponding  with  the  receipt  of  the  grain  into 
store,  and  shall  state  upon  its  face  the  quantity  and  inspected 
grade  of  the  grain,  and  that  the  grain  mentioned  in  it  has  been 
received  into  store  to  be  stored  with  grain  of  the  same  grade  by 
inspection  received  at  about  the  date  of  the  receipt,  and  that 
it  is  deliverable  upon  the  return  of  the  receipts  properly  indorsed 
by  the  person  to  whose  orrler  it  was  issued,  and  upon  the  pay- 
ment of  the  charges  accrued  for  storage.  All  warehouse  re- 
ceipts for  grain  issued  from  the  same  warehouse  shall  be  con- 


MISSOURI.  465 

sccutively  numbered,  and  no  two  receipts  bearing  tlic  same 
lumibor  shall  be  issued  from  the  same  warehouse  during  any  one 
year,  except  in  case  of  a  lost  or  destroyed  receipt,  in  which  case 
the  new  receipt  shall  bear  the  sam(>  date  and  number  as  the 
original,  and  shall  be  plainly  marked  upon  its  face,  ''duj)licate." 
If  the  grain  for  which  receii)ts  are  issucul  was  received  from 
railroad  cars,  the  number  of  each  car  shall  be  stated  in  the  re- 
ceipt, with  the  amount  each  car  contained;  if  by  boat,  barge  or 
other  vessel,  the  name  of  such  craft;  if  fi'om  wagons  or  other 
means,  it  shall  be  so  stated,  if  having  been  bulked  from  sacks, 
the  manner  of  its  receipt  shall  be  stated  upon  the  face  of  such 
receipt  for  grain  stored.     Id.  sec.  5619. 

Receipts — How  issued,  etc. : 

No  warehouse  receipt  shall  be  issued  except  upon  actual  de- 
livery of  grain  into  store  in  the  warehouse  from  which  it  pur- 
ports to  be  issued,  and  which  is  to  be  represented  by  the  receipt; 
nor  shall  any  receipt  be  issued  for  a  greater  (|uantity  of  grain 
than  was  contained  in  the  lot  stated  to  have  been  received;  nor 
shall  more  than  one  receipt  he.  issued  for  the  same  lot  of  grain 
except  in  cases  where  receipts  for  a  part  of  a  lot  are  desired,  and 
then  the  aggregate  receipts  for  a  particular  lot  shall  cover  that 
lot  and  no  more.  In  cases  where  a  part  of  the  grain  represented 
by  the  receipt  is  delivered  out  of  store  and  the  remainder  is  left, 
a  new  receipt  may  be  issued  for  such  remainder;  Init  such  new 
receipt  shall  bear  the  same  date  as  the  original,  and  shall  state 
on  its  face  that  it  is  the  balance  of  receipt  of  the  original  num- 
ber, and  the  receipt  upon  which  a  part  has  been  delivered  shall 
be  cancelled  in  the  same  manner  as  if  the  grain  it  called  for  had 
all  been  delivered.  In  case  it  be  desirable  to  divide  one  receipt 
into  two  or  more,  or  in  case  it  be  desirable  to  consolidate  two  or 
more  receipts  into  one,  and  the  warehouseman  consents  thereto, 
the  original  receipt  shall  be  cancelled  the  same  as  if  the  grain 
had  been  delivered  from  store;  and  the  new  receipts  shall  state 
on  their  face  that  they  are  parts  of  other  receipts  or  a  consolida- 
tion of  other  receipts,  as  the  case  may  be;  and  the  numbers  of 
the  original  receii)ts  shall  also  appear  upon  the  new  ones  issued 
explaining  the  change,  but  no  consolidation  of  receipts  or  dates 
differing  more  than  ten  days  shall  be  permitted,  and  all  new 
30 


466  MISSOURI   LAWS. 

receipts  issued  for  old  ones  cancelled  as  herein  provided  shall 
bear  the  same  dates  as  those  originally  issued,  as  near  as  may 
be.     Id.  sec.  5620. 

Receipt  not  to  limit  or  modify  responsibility  : 

No  warehouseman  under  this  article  shall  insert  in  any  re- 
ceipt issued  for  grain  received,  any  language  in  anywise  limit- 
ing or  modifying  his  responsibility  or  liability  as  imposed  by 
the  laws  of  this  state.     Id.  sec.  5621. 

Receipt  to  be  marked  and  cancelled  npon  delivery  of  grain : 

Upon  delivery  of  grain  from  store  upon  any  receipt,  such  re- 
ceipt shall  be  plainly  marked  across  its  face  with  the  word  "can- 
celled," with  the  name  of  the  person  cancelling  the  same,  and 
shall  thereafter  be  void  and  shall  not  again  be  put  in  circula- 
tion, nor  shall  grain  be  delivered  twice  on  the  same  receipt. 
Id.  sec.  5622. 

Receipts  transferable  by  indorsement : 

Warehouse  receipts  for  property  stored  in  warehouses  created 
by  this  article  as  herein  described  shall  be  transferable  by  the 
indorsement  of  the  party  to  whose  order  such  receipt  may  be 
issued,  and  such  indorsement  shall  be  deemed  a  valid  transfer 
of  the  property  represented  by  such  receipt,  and  may  be  made 
either  in  blank  or  to  the  order  of  another.     Id.  sec.  5623. 

Fraudulent  receipts—  Penalty : 

Any  warehouseman  of  any  public  warehouse  created  by  this 
article,  employed  in  such  warehouse,  or  owner  or  manager  con- 
nected with  the  same,  who  shall  be  guilty  of  issuing  any  ware- 
house receipt  for  any  pro])erty  not  actually  in  store  at  the  time 
of  issuing  such  receipt,  or  who  shall  be  guilty  of  issuing  any 
warehouse  receipt  in  any  respect  fraudulent  in  its  character, 
either  as  to  its  date  or  the  quantity,  quality  or  inspected  grade 
of  such  property,  or  who  shall  remove  any  property  from  store 
except  to  preserve  it  from  fire  or  other  sudden  danger,  without 
the  return  and  cancellation  of  any  and  all  outstanding  receipts 
that  may  have  been  issued  to  represent  such  property,  shall, 
when  convicted  thereof,  be  guilty  of  a  felony,  and  shall  suffer 
in  addition  to  other  penalties  prescribed  by  this  article,  im- 


MISSOURI.  467 

prisonment  in  the  penitentiary  for  not  less  than  one  and  not 
more  than  ten  years.     Id.  sec.  5624. 

Grain  to  be  delivered  upon  presentation  of  reeeipt : 

Upon  the  return  of  any  warehouse  receipt  issued  by  persons 
in  chai'ge  of  warehouses  (treated  by  this  article,  and  the  demand 
for  the  d(>livery  of  property  represented  by  such  receipt,  duly 
indorsed,  if  not  presented  by  original  holder,  accompanied  by 
the  tender  of  all  proper  charges  upon  the  property  represented, 
such  property  shall  be  immediately  deliverable  to  the  holder  of 
such  receipt,  and  it  shall  not  be  subject  to  further  charges  for 
storage  after  demand  for  such  delivery  shall  have  been  made, 
and  deliveries  shall  be  made  by  the  warc^houseman  in  the  order 
in  which  such  receipts  are  presented  and  demand  for  deliveries 
made.     Id.  sec.  5625. 

Warehousemen  to  publish  schedule  rates  : 

The  manager  of  every  public  warehouse  created  by  this  arti- 
cle shall  be  required,  within  thirty  days  after  the  passage  of 
this  article,  and  during  the  first  week  in  January  of  each  year 
thereafter,  to  publish  in  one  or  more  of  the  newspapers  pub- 
lished in  the  vicinity  in  which  such  warehouse  is  situated,  a 
schedule  of  rates  for  the  storage  of  grain  in  his  warehouse  dur- 
ing the  ensuing  year,  which  rates  shall  not  be  increased  during 
the  year,  and  such  published  rates  or  any  published  reduction 
of  them  shall  apply  to  all  grain  received  into  such  warehouse 
from  any  person  or  source,  and  no  discrimination  shall  be  made, 
directly  or  indirectly,  for  or  against  any  person,  in  any  charges 
made  by  such  warehouseman  for  the  storage  of  gi;iiii.  The 
maximum  charge  for  storage  and  handling  of  grain,  including 
the  cost  of  receiving  and  delivering,  shall  be  for  the  first  ten 
days  or  part  thereof  two  cents  per  bushel  and  for  each  ten  days 
thereof  or  part  thereof  after  the  first  ten  days,  one  half  of  one 
cent  per  bushel.     Id.  sec.  5626. 

To  post  amount  and  f?rade  of  ^rain  on  hand  weekly  : 

The  manager  of  every  public  warehouse  created  under  this 
article  shall,  on  or  before  Tuesday  morning  of  each  week,  cause 
to  be  made  out,  and  shall  keep  posted  in  the  business  oflfice  of 
his  warehouse  in  a  conspicuous  place,  a  statement  of  the  amount 


468  MISSOURI    LAWS. 

of  each  kind  and  grade  of  grain  in  store  in  his  warehouse  at  the 
close  of  business  on  the  previous  Saturday,  and  shall  also,  on 
each  Tuesday  morning,  render  a  similar  statement,  made  under 
oath  before  some  officer  authorized  by  law  to  administer  oaths, 
by  some  one  connected  with  such  warehouse  having  personal 
knowledge  of  the  facts,  to  the  board  of  railroad  and  warehouse 
conunissioners.  He  shall  also  be  required  to  furnish  daily  to 
said  board  a  correct  statement  of  the  amount  of  each  kind  of 
grain  and  grade  of  same  received  in  store  in  such  warehouse  on 
the.  ])revious  day;  also  the  amount  of  each  kind  of  each  grade  of 
grain  delivered  or  shii)ped  by  such  warehouse  during  the  previous 
day,  and  what  warehouse  receipts  have  been  cancelled  upon 
which  tlie  grain  has  been  delivered  on  such  day,  giving  the  num- 
ber of  each  receipt  and  the  amount,  kind  and  grade  of  grain 
received  and  shipped  upon  each;  also,  how  much  through  grain 
in  transit  to  points  outside  of  the  state,  if  any,  may  have  been 
received  for  transshipment,  for  which  warehouse  receipts  have 
not  been  issued,  w^as  so  shipped  or  delivered,  and  the  kind  and 
grade  of  it,  when  and  how  much  unreceipted  grain  was  received. 
He  shall  also  make  daily  report  to  the  commissioners  of  receipts 
and  deliveries  of  such  unreceipted  grain,  if  an}^,  received  for 
the  account  of  the  owners  of  such  warehouse,  either  directly  or 
indirectly,  with  the  amount,  kind  and  grade  of  same.  He  shall 
also  report  daily  to  the  commissioners  what  receipts,  if  any, 
have  been  cancelled  and  new  ones  issued  in  their  stead  as  herein 
provided  for.  He  shall  also  make  such  further  statements  to 
the  commissioners  regarding  receipts  issued  or  cancelled  as  may 
be  necessary  for  the  keeping  of  a  full  and  correct  record  of  all 
receipts  issued  and  cancelled  and  of  grain  receivQd  and  delivered. 
Id.  sec.  5627. 

Not  responsible  for  losses  by  fire,  etc. — To  give  notice  of 
grain  damaged  : 

Tlie  owners  of  public  warehouses  under  this  article  shall  not 
be  held  responsible;  for  any  loss  or  damage  to  property  by  fire 
while  in  their  custody:  Provided,  reasonable  care  and  vigilance 
be  exercised  to  protect  and  preserve  the  same;  nor  shall  they 
be  held  liable  for  damage  to  grain  by  heating,  if  it  can  be  shown 
that  proper  care  has  been  exercised  in  handling  and  storing  the 


MissoUKi.  469 

same,  and  that  such  damage  was  the  result  (jf  causes  beyond 
their  control;  but  unless  public  notice  be  given  that  some  por- 
tion of  the  grain  in  store  is  out  of  condition  or  becoming  so, 
grain  of  equal  quality  to  that  received  shall  Im'  ddiNcrcd  on  all 
receipts  presented.  In  case,  however,  any  warehouseman  shall 
discover  that  any  portion  of  the  grain  in  his  warehouse  is  out 
of  conilition  or  becoming  so,  and  it  is  not  in  his  powci-  to  prcserx-e 
the  same,  he  shall  immediately  give  public  notice  by  advertise- 
ment in  a  daily  newspaper,  if  one  is  jjublisheil  in  th(!  cit}-  or 
town  in  which  such  warehouse  is  situated,  and  by  posting  a 
notice  in  the  most  public  i)lace  for  such  a  purpose  in  such  city 
or  town,  of  its  actual  condition,  as  near  as  it  can  be  ascertained. 
Such  notice  shall  state  the  kind  and  grade  of  the  grain,  and  give 
the  number  of  the  bins  in  which  it  is  stored,  and  shall  also  state 
in  such  the  receipts  outstanding  upon  which  such  grain  will  be 
delivered,  giving  the  numbers  and  amounts  and  dates  of  each, 
which  receipts  shall  be  those  of  the  oldest  dates  then  in  circu- 
lation or  uncancelled,  and  the  grain  represented  by  which  has 
not  previous!}'  been  declared  or  receiptetl  for  as  out  of  condi- 
tion; the  enumeration  of  receipts  and  identification  of  grain  so 
discredited  shall  embrace  as  near  as  may  be  as  great  a  quantity 
of  grain  as  is  contained  in  such  bins,  and  such  grain  shall  be 
delivered  upon  the  return  and  cancellation  of  the  receipts  so 
declared  to  represent  it,  upon  the  request  of  the  owner  thereof. 
Nothing  herein  contained  shall  be  held  to  relieve  the  said  ware- 
houseman from  exercising  proper  care  and  vigilance  in  pre- 
serving such  grain  after  such  publication  of  its  condition;  but 
such  grain  shall  be  kept  separate  and  apart  from  all  direct  con- 
tact with  other  grain,  and  shall  not  be  mixed  with  other  grain 
while  in  store  in  such  warehouse.  In  case  the  grain  declared 
out  of  condition,  as  herein  provirlcd  for,  shall  not  be  removed 
from  store  by  the  owner  thereof  within  two  months  from  the 
date  of  the  notice  of  its  being  out  of  condition,  it  shall  I)e  law- 
ful for  the  warehouseman  where  the  grain  is  stored  to  .<^ell  the 
same  at  public  auction,  for  account  of  said  owner,  by  giving 
ten  days'  public  notice  by  advertisement  in  a  daily  newspaper, 
if  there  be  one  published  in  the  city  or  town  where  such  ware- 
house is  located.     Id.  sec.  5628. 


470  MISSOURI    LAWS. 

Negligence  how  punished : 

Any  warehouseman  proved  guilty  of  any  act  of  negligence, 
the  effect  of  which  is  to  depreciate  the  condition  of  property 
stored  in  the  warehouse  under  his  control,  shall  be  held  responsi- 
ble upon  the  bond  given  for  such  warehouse,  and  in  addition 
thereto,  the  license  given  for  such  warehouse  shall  be  revoked 
by  a  proceeding  as  hereinbefore  stated.     Id.  sec.  5629. 

To  furnish  statement  to  commissioners  : 

It  shall  be  the  duty  of  every  owner,  lessee  and  manager  of 
every  public  warehouse  in  this  state  to  furnish  in  writing,  under 
oath,  at  such  times  as  such  railroad  and  warehouse  commis- 
sioners shall  require  and  prescribe,  a  statement  concerning  the 
condition  and  management  of  his  business  as  such  warehouse- 
man.    Id.  sec.  5630. 

To  post  this  article  in  warehouses : 

All  proprietors  or  managers  of  public  warehouses  in  this  state 
shall  keep  posted  up  at  all  times  in  a  conspicuous  place  in  their 
offices,  and  in  each  of  their  warehouses,  a  printed  copy  of  this 
article.     Id.  sec.  5631. 

Inspectors  and  owners  to  examine  grain— Scales,  how  reg- 
ulated : 

All  persons  owning  property,  or  who  may  be  interested  in 
the  same,  stored  in  any  public  warehouse  created  by  this  arti- 
cle, and  all  duly  authorized  inspectors  of  such  property,  shall 
at  all  times  during  ordinary  business  hours  be  at  full  liberty  to 
examine  any  and  all  property  stored  in  any  public  warehouse 
in  this  state,  and  all  proper  facilities  shall  be  extended  to  such 
persons  by  the  warehouseman,  his  agents  and  servants,  for  an 
examination;  and  all  parts  of  public  warehouses  shall  be  free 
for  the  inspection  and  examination  of  any  person  interested  in 
property  stored  therein,  or  by  any  authorized  inspector  of  such 
property.  All  scales  used  for  weighing  of  property  in  public 
warehouses  shall  be  subject  to  examination  and  test  by  any  duly 
authorized  inspector,  the  expense  of  such  test  by  inspector  to 
be  paid  by  the  warehouseman  where  scales  are  so  tested;  and 
no  scales  shall  be  used  for  the  weighing  of  grain  after  being 
found  incorrect,  until  put  in  order  and  found  accurate  and  ap- 


MISSOURI.  471 

proved  for  further  use  by  an    authorized   inspector.     Id.  sec. 
5632. 

Violation  of  prcciMliiii^  soctions — Penalty  : 

A  violation  of  any  of  the  procedinfi;  provisions  of  this  arti- 
cle, except  in  cases  covered  by  sections  7628,  7642,  and  7647, 
by  any  warehouseman,  owner,  lessee,  manager  or  employee  oi 
public  warehouses  created  by  this  article,  is  declared  a  misde- 
meanor, and,  upon  conviction  thereof,  the  violator  shall  be 
fined  not  less  than  one  thousand  nor  more  than  five  thousand 
dollars,  one  fourth  of  such  fine  to  be  awarded  and  paid  to  the 
informer  of  such  misdemeanor.     Id.  sec.  5633. 

Duty  of  prosecuting  attorney  : 

In  all  criminal  prosecutions  against  a  warehouseman  for  the 
violation  of  any  of  the  provisions  of  this  article,  it  shall  be  the 
duty  of  the  prosecuting  attorney  of  the  county  in  which  such 
prosecution  is  brought,  or,  if  in  the  city  of  St.  Louis  the  duty 
of  the  prosecuting  attorney  of  said  city,  to  prosecute  the  same 
to  a  final  issue  in  the  name  of  and  on  behalf  of  the  people  of  the 
state  of  Missouri.     Id.  sec.  5634. 

Injured  persons  may  sue  on  bond  : 

If  any  warehouseman  shall  be  guilty  of  a  violation  of  any  pro- 
vision of  this  article,  to  the  jury  of  any  person  by  such  violation, 
it  shall  be  lawful  for  such  injured  person  to  bring  suit  in  any 
court  of  competent  jurisdiction,  upon  the  bond  of  such  ware- 
houseman, in  the  name  of  the  people  of  the  state  of  Missouri, 
to  the  use  of  such  person.     Id.  sec.  5635. 

Chief  inspector  to  have  general  supervision  : 

It  shall  be  the  duty  of  the  chief  inspector  provided  for  by  this 
article  to  have  a  general  supervision  of  the  inspection  of  grain 
as  required  by  this  article  or  laws  of  this  state,  under  the  afl- 
vice  and  immediate  direction  of  the  board  of  railroad  and  ware- 
house commissioners.     Id.  sec.  5636. 

Chief  inspector  to  nominate  deputy  and  assistants  : 

The  said  chief  inspector  shall  be  authorized  to  nominate  to 
the  commissioners  such  suitable  persons  in  sufficient  numbers 


472  MISSOURI    LAWS. 

as  may  be  deemed  qualified  for  a  deputy  chief  inspector,  to  be 
acting  chief  inspector  in  the  absence  of  the  chief  inspector,  and 
assistant  inspectors  who  shall  not  be  interested  in  any  ware- 
house, and  also  such  other  employees  as  may  be  necessary  to 
properly  conduct  the  business  of  his  office;  and  the  said  com- 
missioners are  authorized  to  make  such  appointments.  Id. 
sec.  5637. 

Chief  inspector  to  take  oath  and  give  bond  : 

The  chief  inspector  shall,  upon  entering  upon  the  duties  of 
his  office,  be  required  to  take  an  oath  that  he  will  faithfully 
and  strictly  discharge  the  duties  of  his  said  office  of  inspector 
according  to  law  and  the  rules  and  regulations  prescribing  his 
duties.  He  shall  execute  a  bond  to  the  people  of  the  state  of 
Missouri  in  the  penal  sum  of  fifty  thousand  dollars,  with  sureties 
to  be  approved  by  the  board  of  railroad  and  warehouse  com- 
missioners, conditioned  that  he  will  pay  all  damages  to  any 
person  or  persons  who  may  be  injured  by  reason  of  his  neglect, 
refusal  or  failure  to  comply  with  the  law  and  the  rules  and  regu- 
lations of  this  article.     Id.  sec.  5638. 

Deputy  and  assistant  inspectors — How  qualified  : 

The  deputy  chief  inspector  and  all  assistant  inspectors  ap- 
pointed under  this  article  shall  be  under  the  supervision  of  the 
chief  inspector,  to  whom  they  shall  report  in  detail  all  services 
performed  by  them  at  the  close  of  each  working  day.  The 
deputy  chief  inspector  and  each  assistant  inspector  shall  take 
the  same  oath  as  the  chief  inspector,  and  execute  a  bond  in  the 
penal  sum  of  ten  thousand  dollars,  with  like  conditions  and  to 
be  approved  in  like  manner  as  provided  for  the  bond  of  the 
chief  inspector,  which  bonds  shall  be  filed  in  the  oflfice  of  the 
said  commissioners.  Suit  may  be  brought  upon  bonds  of  either 
the  chief  inspector,  deputy  chief  inspector  or  assistant  inspect- 
ors, in  any  court  having  jurisdiction  thereof,  in  the  county  or 
city  where  the  defendant  resides,  for  the  use  of  any  person  in- 
jured by  any  act  of  said  chief  inspector,  the  deputy  chief  in- 
spector or  assistant  inspectors.     Id.  sec.  5639. 

To  be  governed  by  rules  of  commissioners  : 

The  chief  inspector  of  grain,  the  deputy  chief  inspector,  as- 


MISSOURI.  47:^ 

sistant  inspectors  and  other  employees  in  connection  therewitli, 
shall  be  governed  in  their  respective  duties  by  such  rules  and 
regulations  as  may  be  prescribed  by  the  board  of  railroad  and 
warehouse  commissioners,  and  the  said  conimissioners  slmll  have 
full  power  to  make  all  proper  rules  and  regulations  for  the  in- 
spection of  grain,  not  inconsistent  with  this  article,  to  include 
the  fixing  of  charges  for  the  inspection  of  grain  and  other  duties 
of  said  chief  inspector,  deputy  chief  inspector  and  assistant  in- 
spectors, and  to  make  rules  for  the  collection  of  same  which 
charges  shall  be  regulated  in  such  manner  as  will  in  the  judg- 
ment of  the  commissioners,  produce  sufficient  revenue  to  meet 
the  necessary  expenses  of  the  service  of  inspection,  and  no  more. 
Id.  sec.  5640. 

Bo.ard  to  fix  compensation  : 

It  shall  be  the  duty  of  said  board  of  commissioners  to  fix  the 
amount  of  com):)ensation  to  be  paid  to  the  chief  inspector, 
deputy  chief  inspector  and  assistant  inspectors,  and  all  other 
persons  employed  in  the  service  of  inspection,  and  prescribe 
the  time  and  mann(M-  of  payment.     /(/.  sec.  5641. 

Malfeasance  of  inspectors — Penalty  : 

Any  duly  authorized  chief  inspector,  deputy  chief  inspector 
or  assistant  inspector  of  grain  under  this  article  who  shall  be 
guilty  of  neglect  of  duty,  or  who  shall  knowingly  or  carelessly 
inspect  or  grade  any  grain  improperly,  or  who  shall  accej^t  any 
money  or  other  valuable  consideration,  chrectly  or  indirectly, 
for  any  neglect  of  duty  as  such  chief  inspector,  deputy  chief 
inspector  or  assistant  inspector,  or  any  person  who  shall  im- 
properly influence  any  chief  inspector,  deputy  chief  inspector 
or  assistant  inspector  of  grain  under  this  article  in  the  perform- 
ance of  his  duties  as  such  inspector,  shall  be  deemed  guilty  of 
a  misdemeanor,  and  on  conviction  shall  be  fined  in  a  sum  not 
less  than  five  hundred  dollars  nor  more  than  a  thousand  dol- 
lars, or  shall  be  imprisoned  in  the  county  jail,  or,  if  in  the  city 
of  St.  Louis,  the  jail  of  said  city,  not  less  than  six  nor  more  than 
twelve  months,  or  both  such  fine  and  imprisonment,  in  the  dis- 
cretion of  the  court.     Id.  sec.  5642. 

Impostors  punislied — How: 

The  inspection  or  grading  of  grain  in  this  state,  whether  into 


474  MISSOURI    LAWS. 

or  out  of  warehouses,  elevators,  or  in  cars,  barges,  wagons  or 
sacks  arriving  at  or  sliipped  from  points  where  state  grain  in- 
spection is  estabhshed,  must  be  performed  by  such  persons  as 
may  be  duly  appointed.,  sworn  and  have  given  bond  under 
this  article,  and  any  person  who  shall  assume  to  act  as  an  in- 
spector of  grain  who  has  not  been  duly  appointed,  sworn,  and 
has  given  ])()n(l  under  this  article,  shall  be  held  to  be  an  im- 
poster,  shall  l)o  guilty  of  a  misdemeanor,  and  upon  conviction 
thereof  shall  be  punished  by  a  fine  not  less  than  one  hundred 
dollars  nor  mon^  than  five  hundred  dollars  or  imprisoned  in  the 
county  jail,  and  if  in  the  city  of  St.  Louis,  in  the  city  jail  of 
said  city  for  not  less  than  three  months  nor  more  than  six 
months,  or  both  such  fine  and  imprisonment,  at  the  discretion 
of  the  court,  for  every  offense  so  committed.  Id.  sec.  5643, 
amended.  Laws,  1893,  p.  182. 

Complaint  against  inspector — How  made  : 

Upon  complaint  in  writing  of  any  person  to  the  said  com- 
missioners supported  by  satisfactory  proof  that  any  person 
appointed  or  employed  by  said  commissioners  under  the  pro- 
visions of  this  article  has  violated  any  of  the  rules  prescribed 
for  his  government,  or  has  been  guilty  of  any  improper  official 
act,  or  has  been  found  incompetent  for  the  duties  of  his  posi- 
tion, such  person  shall  be  removed  from  his  employment  by 
the  same  authority  that  appointed  him,  and  his  place  shall  be 
filled,  if  necessary,  iDy  a  new  appointment.  When  it  shall  be 
deemed  necessary  to  reduce  the  number  of  persons  appointed 
or  omijloyed,  their  terms  of  service  shall  cease  under  the  orders 
of  the  same  authority  by  which  they  were  appointed  or  em- 
ployed.    Id.  sec.  5644. 

Appeals  to  board  of  arbitration : 

In  all  matters  involving  dou])t  on  the  part  of  the  chief  in- 
spector, the  deputy  chief  inspector  or  any  assistant  inspector, 
as  to  the  proper  inspection  into  or  out  of  any  warehouse  created 
by  this  article,  or  in  case  any  owner,  consignee  or  shipper  of 
grain,  or  any  warehouse  manager,  shall  be  dissatisfied  with  the 
decision  of  the  chief  inspector,  the  deputy  chief  inspector  or  any 
assistant  inspector  in  matters  pertaining  to  inspection,  an  appeal 


MISSOURI.  475 

may  be  made  to  the  committee  hereinafter  provided  for,  who 
shall  at  once  convene,  and  whose  decision,  after  a  careful  in- 
(luiry  into  the  questions  at  issue,  shall  he  final.     Id.  sec.  5645. 

Board  of  arbitration : 

The  board  of  railroad  and  warehouse  commissioners  shall, 
as  soon  after  the  passage  of  this  article  as  is  practicable,  appoint 
committees  for  the  adjustment  of  differences  between  inspectors 
and  warehousemen,  or  owners  or  representatives  of  grain,  aris- 
ing from  the  acts  of  inspectors — each  committee  to  consist  of 
three  persons  well  known  as  experts  in  grain ;  and  a  committee 
shall  be  appointed  in  each  city  or  town  where  public  warehouses 
under  this  article  are  located,  said  committees  to  be  known  as 
the  arbitration  committees  of  the  board  of  railroad  and  ware- 
house commissioners.     Id.  sec.  5646. 

Commissioners  to  make  rules  for  arbitrators  : 

The  commissioners  shall  make  equitable  and  legal  rules  gov- 
erning said  committees'  procedure,  in  the  arbitrations,  the  man- 
ner and  amount  of  compensation,  the  method  of  appointment 
and  terms  of  service.     Id.  sec.  5647. 

Commissioners  to  establish  grades  of  grains : 

The  commissioners  shall  establish  a  proper  number  and  stand- 
ard of  grades  for  the  ins]3ection  of  grain,  with  due  regard  to  the 
prevailing  usage  of  the  markets  of  this  state,  the  interests  of 
both  producers  and  dealers,  and  as  near  as  may  be  to  conform 
with  standards  of  grade  adopted  by  leading  markets  of  the 
United  States.  In  addition  to  which,  such  grades  as  may  have 
been  or  may  be  hereafter  established  or  recognized  in  other 
states  and  territories,  shall  prevail  and  be  lawful  in  this  state 
when  used  and  applied  in  dealings  had  in  and  with  grain  \ivo- 
duced  in  such  other  state  and  territory,  so  that  grain  produced 
in  other  states  and  territories  may  be  sold  and  handled  in  this 
state  under  the  same  grades  prevailing  at  the  place  of  tlio  pro- 
duction of  said  grain:  Provided,  no  modifications  or  changes  of 
grade  shall  be  made,  or  any  new  ones  established,  without  public 
notice  being  given  of  such  contemplated  changes  for  at  least 
twenty  days  prior  thereto,  by  publication  in  three  daily  news- 


476  MISSOURI   LAWS. 

papers,  one  of  which  shall  be  printed  in  German,  printed  in 
this  state;  and  provided  further,  that  no  mixture  of  old  or  new 
grades,  even  though  designated  by  the  same  name  or  destinc- 
tion,  shall  be  permitted  while  in  store,  except  as  in  this  article 
provided.     Id.  sec.  5648,  amended,  Laws,  1893,  p.  180. 

Connnissioners  to  report  to  governor  : 

The  board  of  railroad  and  warehouse  commissioners  shall,  on 
or  before  the  first  day  of  January  of  each  year,  make  a  report  to 
the  governor  of  their  doings  for  the  preceding  year,  to  contain 
such  facts  as  will  disclose  the  actual  working  of  the  system  of 
the  warehouse  business  of  this  state  as  contemplated  by  this 
article,  and  such  suggestions  thereto  as  to  them  may  appear 
pertinent.     Id.  sec.  5649. 

Commissioners  to  examine  and  visit  warehouses : 

Said  commissioners  shall  examine  into  the  condition  and 
management,  and  all  other  matters  concerning  the  business  of 
warehouses  under  this  article,  in  this  state,  so  far  as  the  same 
may  pertain  to  the  relations  of  such  warehouses  to  the  public, 
and  to  the  security  and  convenience  of  persons  doing  business 
therewith,  and  to  ascertain  whether  the  officers,  directors,  man- 
agers, lessees,  agents  and  employees  comply  with  the  laws  of  this 
state  now  in  force  or  to  be  in  force  concerning  such  warehouses. 
Whenever  it  shall  come  to  their  knowledge  or  they  shall  have 
reason  to  believe  that  any  law  governing  the  public  warehouses 
of  this  state  under  this  article  is  being  or  has  been  violated,  they 
shall  cause  to  be  prosecuted  or  to  prosecute  all  persons  guilty  of 
such  violation.  To  enable  said  commissioners  efficiently  to  per- 
form their  duties  under  this  article,  it  is  hereby  made  their  duty 
to  cause  one  or  more  of  their  number,  at  least  once  in  six  months, 
to  visit  each  warehouse  in  this  state  and  to  personally  inquire 
into  the  management  of  such  warehouse  business.     Id.  sec.  5650. 

Books,  etc.,  subject  to  examination  : 

The  property,  books,  records,  accounts,  papers  and  proceed- 
ings of  all  such  warehousemen  as  are  contemplated  by  this 
article,  shall  at  all  times  during  business  hours  be  subject  to 
the  examination  and  inspection  of  the  commissioners,  or  any 


MISSOURI.  477 

one  of  them,  and  they  or  any  one  of  them  shall  have  power  to 
examine,  under  oath,  any  owner,  manager,  lessee,  agent  or 
employee  of  a  public  wan^house,  and  any  other  person,  con- 
cerning the  condition  and  management  of  such  warehouse. 
Id.  sec.  5651. 

Commissioners  may  subpa?nji  witnesses  : 

In  making  any  examination  as  c(jntemplated  by  this  article, 
or  for  the  })urpose  of  obtaining  information  as  contemplated 
by  this  article,  said  commissioners  shall  have  power  to  issue 
subpcrnas  for  the  attendance  of  witnesses,  and  may  administer 
oaths.  In  case  any  person  sh:dl  willfully  refuse  to  obey  such 
subprma,  it  shall  be  the  duty  of  the  circuit  court  of  any  county, 
if  in  St.  Louis  the  circuit  court  of  said  city,  upon  application 
of  said  commissioners,  to  issue  an  attachment  for  such  witness 
and  compel  such  witness  to  attend  before  the  commissioners 
and  give  his  testimony  upon  such  matters  as  shall  be  lawfully 
required  by  such  commissioners;  and  the  said  court  shall  have 
power  to  punish  for  contempt  as  in  other  cases  of  refusal  to  obey 
the  process  and  order  of  such  court.     Id.  sec.  5652. 

Failure  to  obey  subpoena — Penalty  : 

Any  person  who  shall  willfully  neglect  or  refuse  to  obey  the 
process  of  subpcjena  issued  by  said  commissioners,  and  ajopear 
and  testify  as  therein  required,  shall  be  guilty  of  a  misdemeanor, 
and  shall  be  liable  to  arraignment  and  trial  in  any  court  of  com- 
petent jurisdiction,  and  on  conviction  thereof  shall  be  punished 
for  each  offense  by  a  fine  of  not  less  than  twenty-five  dollars 
nor  more  than  five  hundred  dollars,  or  by  imprisonment  of  not 
more  than  thirty  days,  or  both  such  fine  and  imprisonment,  in 
the  discretion  of  the  court  before  which  such  conviction  shall 
be  had.     Id.  sec.  5653. 

Duty  of  attorney-general  and  prosecutinp;  attorneys  : 

It  shall  be  the  duty  of  the  attorney-general  and  the  state's 
attorney  in  every  county,  if  in  cases  brought  in  St.  Louis,  the 
state's  attorney  for  said  city,  on  the  request  of  said  commis- 
sioners, to  institute  and  prosecute  any  and  all  suits  or  )iroceed- 
ings  which  they  or  either  of  them  shall  be  directed  by  said  com- 


478  >nssouKi  laws. 

missioners  to  institute  and  prosecute  for  a  violation  of  this  arti- 
cle, or  any  law  of  this  state  concerning  public  warehouses  as 
constituted  by  tliis  article,  or  the  officers,  employees,  owners, 
operators  or  agents  of  such  warehouses.     Id.  sec.  5654. 

Prosecutions  to  be  in  the  name  of  the  state  : 

All  prosecutions  under  this  article  shall  be  in  the  name  of  the 
people  of  the  state  of  Missouri,  and  all  moneys  arising  there- 
from shall  be  paid  into  the  state  treasury  by  the  sheriff  or  other 
officer  collecting  the  same:  Provided,  this  article  shall  not  be 
construed  so  as  to  prevent  any  person  entitled  to  receive  a  per- 
centage of  fines  imposed  and  collected,  as  a  reward  for  informa- 
tion furnished  as  hereinbefore  stated,  which  percentage  shall 
be  paid  to  such  person  by  the  officer  collecting  such  fine.  Id. 
sec.  5655. 

Not  to  deprive  persons  of  common-law  remedy  : 

Nothing  in  this  article  shall  deprive  any  person  of  any  com- 
mon-law remedy  now  existing.     Id.  sec.  5656. 

Not  to  affect  right  to  prosecute  for  damages  : 

This  article  shall  not  be  construed  so  as  to  waive  or  affect  the 
right  of  any  person  injured  by  the  violation  of  any  law  in  regard 
to  warehouses  from  prosecuting  for  his  private  damages  in  any 
manner  allowed  by  law.     Id.  sec.  5657. 

Weiglimasters — Duties  of,  etc. : 

It  shall  be  the  duty  of  the  chief  inspector  provided  for  by  this 
article,  to  nominate  to  the  commissioners  suitable  persons  to 
act  as  wcighmasters  at  such  points  in  this  state  wherever  state 
grain  inspection  may  be  established  in  conformity  with  sec- 
tion 7655  of  this  article;  said  weighmasters  shall  at  the  places 
aforesaid  supervise  the  weighing  of  all  grain  before  removing 
from  the  car,  which  may  be  subject  for  inspection,  at  all  ware- 
houses where  there  are  no  such  scales  as  hopper  scales,  and  in 
such  case  track  scales  shall  be  provided  upon  which  the  gross, 
tare  and  net  weight  of  each  car,  wagon  or  other  package  shall 
be  taken,  but  all  warehouses  having  hopper  scales  the  net  weight 
of  grain  contained  in  each  car,  wagon  or  other  package  shall  be 
taken,  and  the  inspection  of  scales  and  the  action  and  certificate 


MISSOURI.  479 

of  such  weighmiisters  in  the  discharge  of  their  aforesaid  duties 
shall  be  conclusive  upon  all  parties  in  interest:  Provided,  that 
such  weighmasters  shall  have  the  entire  control  of  such  scales. 
Laws,  1893,  p.  182. 

Coiiiiuissioiiers  to  fix  fees  for  weiffliiiiff  : 

The  board  of  railroad  and  warehous(;  conunissioners  of  the 
state  of  Missouri  shall  fix  the  fees  to  be  paid  for  the  weighing 
of  grain,  which  foes  sliall  be  paid  by  the  warehouseman,  anrl 
may  be  added  to  the  charges  for  storage,  and  the  said  commis- 
sioners shall  adopt  such  rules  and  regulations  for  the  weighing 
of  grain  as  they  shall  deem  proper.     Id.  p.  182. 

Wareliouseiiieu  to  furnish  scales — To  weigh  grain  in  store 
— Wlien  : 

It  shall  be  the  duty  of  the  person  or  persons  doing  a  public 
warehouse  business  under  this  article  to  provide  and  maintain 
suitable  scales,  upon  which  all  grain  tendered  to  him  or  them 
for  storage  shall  be  weighed  under  the  supervision  of  a  weigh- 
master,  as  provided  for  in  the  preceding  section.  Said  scales 
shall  be  located  at  the  most  convenient  point  upon  the  track  of 
some  railroad  running  into  or  adjoining  such  warehouse.  It 
shall  further  be  the  duty  of  the  person  or  persons  doing  a  public 
warehouse  business  under  this  article,  at  some  convenient  time, 
at  least  once  a  year,  and  under  the  supervision  of  such  weigh- 
master  or  other  authorized  employee  of  the  state  grain  inspec- 
tion department,  to  weigh  all  grain  at  such  time  or  times  then 
in  store  at  such  warehouse,  and  to  report  to  the  warehouse 
registrar  the  result  of  sucli  weighing  and  the  actual  amount  of 
each  kind  and  grade  in  store.  During  such  time  as  such  weigh- 
ing is  going  on,  the  receiving  and  shipping  of  grain  into  and  from 
such  warehouse  shall  be  discontinued  until  such  general  weigh- 
ing has  been  completed.     Id.  p.  182. 

Railroad  to  furnish  scales  to  weigh  grain  handled  : 

At  all  terminals  or  other  points  within  this  state  wherever 
state  grain  inspection  may  be  established,  it  shall  be  the  duty 
of  all  railroads  to  provide  suitable  scales  upon  which  all  grain 
handled  by  them,  and  not  consigned  to  i)ul)lic  warehouses,  but 
sa])ject  to  inspection,  may  be  weighed  as  required  by  this  arti- 


480  :NnssouRi  laws. 

cle.  Said  scales  shall  be  located  at  places  to  be  designated  by 
the  board  of  railroad  and  warehouse  commissioners  of  this  state, 
and  it  shall  be  the  duty  of  said  commissioners  to  see  that  the 
provisions  of  this  and  all  other  sections  of  this  article  are  strictly 
enforced.     /(/.  p.  182. 

Weigh  masters  to  give  bond — Conipensatioii : 

The  weighmasters  provided  for  in  this  article  shall  give  bond 
in  the  sum  of  five  thousand  dollars,  conditioned  for  the  faithful 
discharge  of  their  duties,  and  shall  receive  such  compensation 
as  the  board  of  railroad"  and  warehouse  commissioners  shall 
determine.     Id.  p.  182. 

Penalty  for  fraudulent  weighing,  etc. : 

Any  person,  association,  firm,  trust  or  corporation,  or  any 
re]H-esentative  thereof,  or  any  weighmaster,  who  shall  know- 
ingly cheat  or  falsely  weigh  any  wheat  or  other  agricultural 
products,  or  who  shall  violate  the  provisions  of  sections  7677 
to  7682,  inclusive,  or  shall  do  or  perform  any  act  or  thing  therein 
forbidden,  or  who  shall  fail  to  do  and  keep  the  requirements  as 
h(M-ein  provided,  shall  be  deemed  guilty  of  a  misdemeanor,  and 
shall  be  fined  in  a  sum  not  less  than  five  hundred  dollars  nor 
more  than  one  thousand  dollars,  or  shall  be  imprisoned  in  the 
county  jail,  or  if  in  the  city  of  St.  Louis  the  jail  of  said 
city,  not  less  than  six  nor  more  than  twelve  months,  or  both 
such  fine  and  imprisonment,  in  the  discretion  of  the  court.  Id. 
p.  182. 

Inspection  of  tobacco — Term  of  office  and  qualifications  of 
inspector : 

There  is  hereby  established  in  the  city  of  St.  Louis,  Missouri, 
a  tobacco  inspection.  The  governor  shall  appoint  in  the  city 
of  St.  Louis  an  inspector  of  tobacco,  who  shall  hold  his  office  for 
two  years;  said  inspector  shall  be  a  (Hscreet,  suitable  person,  and 
shall  not  be  interested  in  any  of  the  tobacco  warehouses  selling 
leaf  tobacco  in  the  city  of  St.  Louis  as  a  stockholder  or  other- 
wise than  as  tobacco  inspector.     R.  S.  1889,  sec.  5580. 

Duties  of  inspector  : 

No  inspector  shall   either   buy  or  sell  any  tobacco,  except  of 


MISSOURI.  481 

his  own  raising,  but  shall  auctioneer  and  cry  off  all  inspected 
and  leaf  tobacco,  for  the  owner  or  agent,  sold  at  the  warehouse. 
Id.  sec.  5581. 

His  bond  : 

The  inspector  shall,  before  he  enters  upon  the  duties  of  his 
office,  enter  into  bond  to  the  city  of  St.  Louis,  to  be  approved 
by  the  mayor  of  said  city,  with  sufficient  security,  in  a  sum  not 
less  than  ten  thousand  dollars,  conditioned  for  the  faithful  per- 
formance of  his  duties  according  to  law,  which  bond  shall  be 
recorded  in  the  office  of  the  city  register  and  filed  in  the  office 
of  the  secretary  of  state,  and  a  certified  copy  thereof  shall  be 
evidence.     Id.  sec.  5582. 

Book  to  be  kept  by  him  : 

The  inspector  shall  keep  a  book,  in  which  shall  be  entered 
the  marks  of  all  tobacco  which  he  may  be  required  to  inspect, 
and  he  shall  inspect  and  examine  the  same  in  due  time  as  it 
shall  be  entered  in  such  book,  unless  otherwise  agreed,  without 
favor  or  partiality,  and  shall  attend  at  the  respective  ware- 
houses during  all  business  hours  of  each  regular  secular  day, 
whenever  called  on  so  to  do.     Id.  sec.  5583. 

Penalty  for  failing  to  attend  : 

Any  inspector  failing  to  attend  when  so  requested  shall  for- 
feit to  the  party  aggrieved  fifty  dollars  for  every  such  failure, 
or  the  aggrieved  party  may  recover  all  damages  he  may  have 
sustained  by  such  failure  by  action  on  the  bond  of  inspector 
or  by  civil  action.     Id.  sec.  5584. 

Cliarges  and  fees — By  whom  paid : 

The  purchaser  and  seller  shall  each  pay  one  half  of  all  ware- 
house charges,  including  inspection  fees,  on  all  tobacco  sold, 
but  when  the  sale  of  any  tobacco  offered  is  rejected,  then  the 
owner  or  agent  shall  pay  the  whole  of  the  warehouse  charges, 
including  the  inspection  fees.     Id.  sec.  5585. 

Warehonsekeeper  to  have  tobacco  inspected  : 

Any  person  or  persons  who  may  erect  or  shall  keep  a  tobacco 
warehouse  in  the  city  of  St.  Louis,  for  the  purpose  of  offering 
31 


482  MISSOURI    LAWS. 

and  selling  leaf  tobacco  prized  in  hogsheads,  shall  have  such 
tobacco  inspected  before  sale,  by  the  state  inspector  appointed 
in  and  for  the  city  of  St.  Louis,  and  by  no  other.     Id.  sec.  5586. 

Oath  of  inspector : 

The  oath  of  the  inspector  shall  be  in  the  form  following: 

I,  ,  do  solemnly  swear  that  1  will  carefully  and  diligently 

inspect  and  examine  all  tobacco  which  1  may  be  called  on  to 
inspect,  and  that  I  will  not  change,  alter  or  give  out  any  tobacco 
as  a  sample  other  than  such  as  shall  have  been  taken  from  the 
hogshead  for  which  the  receii)t  to  be  taken  was  given,  and  that 
I  will  not,  directly  or  indirectly,  be  engaged  in  the  manufactur- 
ing, shipping  or  exportation  of  tobacco,  nor  will  I  deal  in  any 
manner  in  the  article  during  the  time  that  I  shall  continue  in 
office  except  as  expressly  permitted  b}^  law,  but  that  I  will  in 
all  things  well  and  faithfulh'  discharge  nnd  perform  my  duty 
in  the  office  of  inspector,  according  to  the  l^est  of  my  skill  and 
judgment,  and  according  to  the  direction  of  the  law,  without 
fear,  favor  or  affection,  malice  or  partiality,  so  help  me  God. 
Id.  sec.  5587. 

To  be  filed,  where : 

Such  oath  shall  be  filed  in  the  office  of  the  secretary  of  state, 
and  a  violation  thereof  shall  be  deemed  perjury,  and  shall  sub- 
ject the  party,  upon  conviction,  to  the  penalties  of  perjury. 
Id.  sec.  5588. 

Hogsheads  to  be  weighed  and  branded  before  inspection  : 

The  inspector  of  tobacco  shjdl,  before  any  hogshead  of  tobacco 
is  uncased  for  inspection  by  liim,  cause  the  same  to  be  carefully 
weighed  and  the  gross  weight  marked  or  branded  thereon.  Id. 
sec.  5589. 

Mode  of  inspection  : 

After  a  hogshead  has  been  thus  weighed  and  marked  and 
branded,  the  inspector  shall  uncase  and  break  the  same  in  not 
less  than  two  nor  more  than  four  places,  and  take  from  each 
break  a  like  proportion  of  tobacco  as  a  sample  of  the  whole 
hogshead  that  he  may  inspect,  and  each  hogshead  shall  be  by 
him  carefully  weighed  in  the  scales  or  the  balance,  and  with 


MISSOURI.  483 

the  weight  kept  in  the  warehouse,  and  shall  be  by  him  marked 
with  the  tare  of  the  hogshead,  and  the  quantities  of  tobacco 
therein  contained,  and  also  with  the  words  "Missouri  State 
Tobacco  Inspection."     Id.  sec.  5590. 

Tare  and  net  weight : 

The  tare,  with  the  addition  of  ten  pounds  for  weight  of  sam- 
ple, shall  be  deducted  from  the  gross  weight;  the  remainder 
shall  be  the  net  weight,  and  the  inspector  shall  in  all  cases  de- 
liver to  the  owner  of  the  purchaser  of  any  hogshead  of  tobacco 
the  samples  which  were  drawn  from  the  same.  Whenever  any 
hogshead  of  tobacco  shall  have  been  weighed  under  the  super- 
intendence of  the  inspector,  and  the  net  weight  registered  and 
marked  on  such  hogshead  of  tobacco,  he  shall  be  responsible  to 
the  purchaser,  owner  or  agent  of  the  same  for  the  net  weight  of 
tobacco  so  registered  and  marked  on  such  hogshead  of  tobacco, 
reasonable  allowance  being  made  for  waste  in  handling.  Id. 
sec.  5591. 

Samples  to  be  done  up,  how : 

It  shall  be  the  duty  of  the  inspector  to  have  all  samples  of 
tobacco  drawn  by  him  well  tied,  tagged  and  sealed;  the  card 
or  tag  so  placed  upon  the  sample  shall  contain  the  number, 
gross  weight,  net  weight  and  date  of  inspection,  and  the  seal  so 
used  shall  contain  the  words  "Missouri  State  Tobacco  Inspec- 
tion."   Id.  sec.  5592. 

Form  of  certificate  of  inspection  : 

The  inspector  shall  issue  a  certificate  to  the  owner  or  agent 
for  each  hogshead  of  tobacco  by  him  inspected,  which  shall,  as 

near  as  possible,  be  in  the  form  following ;  At warehouse 

in  the  city  of  St.  Louis,  in  the  state  of  Missouri,  this day 

of ,  19 — ,  inspected  for one  hogshead  of  leaf  to- 
bacco (strips,  scraps  or  stems,  as  the  case  may  be),  number, 
mark  and  weight  as  follows:  Number  1,  marks  1,  gross  1,  tare  1, 
net  1.     Witness  my  hand,  the  day  and  year  aforesaid. 

A ,  Inspector. 

And  the  keeper  or  superintendent  of  any  warehouse  where  such 
tobacco  is  left  on  storage  shall,  upon  every  certificate  issued 


484  ]NnssorKi  laws. 

by  the  inspector,  certify  upon  the  lace  of  the  same  that  said 
tobacco  is  on  storage  and  deHverable  only  on  return  of  said 
certificate  to  the  holder  thereof.     Id.  sec.  5593. 

Hogshead  to  be  restored  to  good  sliipping  order : 

It  shall  be  the  duty  of  the  inspector  to  attend  and  see  that 
after  the  uncasing  and  inspection  of  the  hogshead  of  tobacco 
the  same  to  be  replaced  to  its  former  condition,  and  in  good 
shipping  order,  and  that  all  leaf  tobacco  belonging  to  each  and 
every  hogshead  so  opened  and  inspected  be  put  back  as  near 
as  possible  to  where  it  belonged  before  the  same  was  uncased. 
Id.  sec.  5594. 

Inspector's  fees : 

For  every  hogshead  of  tobacco  inspected  in  the  city  of  St. 
Louis,  the  inspector  shall  receive  twenty-five  cents  inspection 
fee,  which  may  be  collected  with  the  other  warehouse  fees. 
Id.  sec.  5595. 

Penalty  for  unawthorized  inspection  : 

If  any  person  other  than  the  inspector  shall  inspect  any  hogs- 
head of  tobacco  within  the  city  of  St.  Louis,  or  if  any  person 
occupying  any  store  or  warehouse  within  the  city  of  St.  Louis 
shall  suffer  or  permit  any  person  other  than  the  inspector  to 
inspect  any  hogshead  of  tobacco  upon  the  premises  occupied 
by  him,  such  person  inspecting  the  tobacco,  and  such  person 
or  persons  suffering  and  permitting  such  illegal  inspection,  shall 
each  be  fined  in  the  sum  of  one  hundred  dollars  for  every  hogs- 
head of  tobacco  so  inspected  to  the  use  of  the  state,  to  be  re- 
covered by  indictment.     Id.  sec.  5596. 

Scales  and  hands,  by  Avhom  furnished  : 

No  inspector  shall  be  required  to  furnish  scales  or  hands  to 
strip  or  break  tobacco,  but  the  same  shall  be  furnished  by  the 
warehouse  or  any  person  or  persons  that  may  have  tobacco 
inspected  in  the  city  of  St.  Louis.     Id.  sec.  5597. 

Fraudulently  packed   hogsheads  to  be  marked,  how : 

In  case  the  inspector  in  the  inspecting  or  sampling  of  any 
hogshead  of  tobacco  shall  find  any  evidence  or  indication  of  its 


MissDL'Ri.  486 

being  falsely  or  frauduk'ntly  packed,  it  siiall  be  his  duty  to 
write  across  the  face  of  his  certilicate  and  acr(jss  the  face  of  the 
tag  in  1-0(1  ink,  "falsely  or  fraudulently  packed,"  and  he  shall 
further  giv(^  notice  to  the  assembly  of  deiders  before  offering 
said  hogshead  of  tobacco  for  sale.     Id.  sec.  5598. 

Appointment  and  qnaliflcation  of  deputies  : 

The  inspector  is  hereby  empowered,  if  necessary  to  the  con- 
venient dispatch  of  his  respective  duties,  to  appoint  one  or 
more  deputies  at  his  own  cost,  for  whom  he  shall  be  account- 
able, which  deputies  are  hereby  empowered  to  perform  the 
duties  of  inspection,  and  shall  be  liable  to  the  same  penalties 
as  the  inspector;  said  deputies  shall  take  the  same  oath  as  pre- 
scribed for  the  inspector,  and  for  whose  official  conduct  the  said 
inspector  shall  be  liable  upon  his  official  bond.     Id.  sec.  5599. 

Inspectors  and  warehousekeepers  not  responsible  for  nat- 
ural loss  in  weights : 

Section  7609  shall  not  be  construed  so  as  to  hold  the  inspector 
and  warehousekeeper,  or  either  of  them,  responsible  for  the 
natural  losses  of  weight  that  may  occur  or  take  place  during 
storage  and  while  the  same  is  undergoing  the  sweat  to  which 
leaf  tobacco  is  subject.     R.  S.  1889,  sec.  5600. 

Sales  of  tobacco  to  be  approved  by  the  owner : 

All  tobacco  cried  off,  or  offered  for  sale,  shall  be  subject  to  the 
approval  of  the  owner  or  agent  thereof,  but  it  shall  be  the  duty 
of  the  said  owner  or  agent  to  accept  or  reject  the  sale  of  said 
tobacco  before  the  tobacco  sale  is  over  on  that  day;  but  in  the 
event  of  his  failure  to  accept  or  reject  such  .sale  within  the  time 
specified  as  above,  it  shall  be  at  the  option  of  the  purchjiser  to 
accept  the  terms  of  said  sale.     Id.  sec.  5601. 

Certificates  of  inspection  negotiable : 

The  certificate  of  a  hogshead  of  tobacco  issued  by  the  in- 
spector of  tobacco,  and  countersigned  by  the  keeper  or  superin- 
tendent of  the  warehouse,  shall  be  negotiable,  and  the  ware- 
house, store,  person  or  persons  under  who.se  charge  the  package 
or  hogshead  of  tobacco  for  which  said  certificate  was  issued  is 
stored,  shall  be  responsible  for  the  full  value  of  the  same  to  the 


486  MISSOURI    LAWS. 

holder  of  said  certificate,  loss  or  damage  from  elemental  causes 
alone  excepted.     Id.  sec.  5602. 

Appoiutment  of  local  inspectors  in  other  towns  : 

Nothing  in  this  article  shall  be  so  construed  as  to  prevent 
any  other  town,  city  or  county  from  establishing  tobacco  in- 
spection, when  twenty-five  freeholders  shall  petition  the  gov- 
ernor for  the  appointment  of  a  tobacco  inspector  for  such  local 
inspection:  Provided,  said  inspector  so  appointed  by  the  gov- 
ernor shall  be  subject  to  all  the  provisions  of  this  article  relat- 
ing to  the  qualifications,  duties  and  fees  of  the  tobacco  inspector 
for  the  city  of  St.  Louis,  except  so  far  as  regards  the  matter  of 
residence  and  filing  his  bond.     Id.  sec.  5603. 

Limit  of  warehouse  fees : 

The  warehouse  fees  shall  not  exceed  three  dollars  for  each 
hogshead,  including  inspection  fee  at  any  one  offer.  Id.  sec. 
5604. 

Common  carriers  may  retain  goods  until  charges  are  paid  : 

When  any  goods,  merchandise  or  other  property  shall  have 
been  received  by  any  railroad  or  express  company,  or  other 
common  carrier,  commission  merchant  or  warehouseman,  and 
shall  not  be  received  by  the  owner,  consignee,  or  other  author- 
ized person,  it  shall  be  lawful  to  hold  the  same  by  said  carrier, 
commission  merchant  or  warehouseman,  or  the  same  may  be 
stored  with  some  responsible  person,  and  be  retained  until  the 
freight  and  all  just  and  reasonable  charges  be  paid.  Id.  sec. 
6806. 

Property  unclaimed  to  be  sold,  how : 

If  no  person  calls  for  said  goods,  merchandise  or  other  prop- 
erty, within  sixty  days  from  the  receipt  thereof,  and  pay  freight 
and  charges  thereon,  it  shall  be  lawful  for  such  carrier,  commis- 
sion merchant  or  warehouseman,  to  sell  such  goods,  merchan- 
dise or  other  property,  or  so  much  thereof  at  auction,  to  the 
highest  bidder,  as  will  pay  said  freight  and  charges,  first  having 
given  twenty  days'  notice  of  the  time  and  place  of  sale  to  the 
owner,  consignee  or  consignor,  when  known,  and  by  advertise- 
ment in  a  daily  paper,  or  if  in  a  weekly  paper,  four  weeks,  pub- 


MISSOURI.  487 

lished  where  such  sale  is  to  take  place;  and  if  any  surplus  be  left 
after  paying  freight,  storage,  cost  of  advertising,  and  all  other 
just  and  reasonable  charges,  the  same  shall  be  paid  over  to  the 
rightful  owner  of  said  property  at  any  time  thereafter,  upon 
demand  being  made  therefor,  within  sixty  days.  Id.  sec. 
6807. 

Money  not  to  be  loaned  to  exceed  what  amount,  etc. : 

No  incorporation  or  private  bank  in  this  state  shall  loan  its 
money  to  any  individual,  cf)rporation  or  company,  directly  or 
indirectly,  or  permit  any  individual,  corporation  or  company 
to  become  at  any  time  indebted  or  be  liable  to  it  in  a  sum  ex- 
ceeding twenty-five  per  cent  of  its  capital  stock  actually  paid 
in,  or  permit  a  line  of  loans  or  credits  to  any  greater  amount  to 
any  individual  or  corporation;  a  permanent  surplus,  the  setting 
apart  of  which  shall  have  been  certified  to  the  secretary  of  state, 
and  which  cannot  be  diverted  without  due  notice  to  said  officer, 
may  be  taken  and  considered  as  a  part  of  the  capital  stock  for 
the  purposes  of  this  section:  Provided,  said  surplus  is  equal  to 
in  excess  of  fifty  per  cent  of  the  capital  stock  of  said  bank: 
Provided,  that  the  provisions  in  this  section  shall  not  be  so  con- 
strued as  in  anywise  to  interfere  with  the  rules  and  regulations 
of  any  clearing  association  in  this  state  in  reference  to  the  daily 
balances  between  banks:  Provided,  that  this  section  shall  not 
apply  to  balances  due  from  correspondents  subject  to  draft; 
and  'provided  further,  that  the  discount  of  the  following  classes 
of  paper  shall  not  be  considered  as  money  borrowed  within  the 
meaning  of  this  section,  viz. :  (1)  The  discount  of  bills  of  ex- 
change drawn  in  good  faith  against  actually  existing  values. 
(2)  The  discount  of  paper  based  upon  the  collateral  security  of 
warehouse  receipts  covering  agricultural  and  manufactured 
products  in  store  in  elevators  and  warehouses  under  the  follow- 
ing conditions:  First,  that  the  actual  market  value  of  the  prop- 
erty held  in  store  and  covered  by  such  receipts  sliall  at  all  tiiiuxs 
exceed  at  least  twenty  per  cent  the  amount  loaned  upon  the 
same.  Second,  that  the  full  amount  of  the  loans  shall  at  all 
times  be  covered  by  policies  of  fire  insurance  issued  by  com- 
panies admitted  to  do  business  in  this  state  to  the  extent  of 
their  ability  to  cover  such  loans,  and  then  by  companies  having 


488  Missouri  laws. 

sufficient  paid-up  capital  to  be  so  admitted,  and  all  such  poli- 
cies shall  be  made  payable  in  case  of  loss  to  the  bank  or  holder 
of  the  warehouse  receipts.  Id.  sec.  2758,  amended,  Laws,  1897, 
p.  89. 

Shipments  of  grain  in  bnlk  : 

Every  railroad  corporation  which  shall  receive  any  grain  in 
bulk  for  transportation  to  any  place  within  the  state  shall  trans- 
port and  deliver  the  same  to  any  consignee,  elevator,  warehouse 
or  place  to  whom  or  to  which  it  may  be  consigned  and  directed: 
Provided,  such  person,  warehouse  or  place  can  be  reached  by  any 
track  owned,  leased  or  used,  or  which  can  be  used  by  such  cor- 
poration; and  every  such  corporation  shall  permit  connections 
to  be  made  and  maintained  with  its  track  to  and  from  any  and 
all  public  warehouses  where  grain  is  or  may  be  stored.  Any 
such  corporation  neglecting  or  refusing  to  comply  with  the  re- 
quirements of  this  section  shall  be  liable  to  all  persons  injured 
thereby  for  all  damages  which  they  may  sustain  on  that  ac- 
count, whether  such  damages  result  from  any  depreciation  in 
the  value  of  such  property,  by  such  neglect  or  refusal  to  deliver 
such  grain  as  directed,  or  in  loss  to  the  proprietor  or  manager 
of  any  public  warehouse  to  which  it  is  directed  to  be  delivered, 
and  costs  of  suit,  including  such  reasonable  attorney's  fees  as 
shall  be  taxed  by  the  court.  And  in  case  of  any  second  or  later 
refusal  of  such  railroad  corporation  to  comply  with  the  re- 
quirements of  this  section,  such  corporation  shall  be,  by  the 
court,  in  an  action  on  which  such  failure  or  refusal  shall  be 
found,  adjudged  to  pay,  for  the  use  of  the  people  of  this  state, 
a  sum  of  not  less  than  one  thousand  nor  more  than  five  thou- 
sand dollars,  for  each  and  every  such  failure  or  refusal,  and  this 
may  be  a  part  of  the  judgment  of  the  court  in  any  second  or 
later  proceeding  against  such  corporation.  In  case  any  rail- 
road corporation  shall  be  found  guilty  of  having  violated,  failed 
or  omitted  to  observe  and  comply  with  the  requirements  of  this 
section,  or  any  part  thereof,  three  or  more  times,  it  shall  be  law- 
ful for  any  person  interested  to  apply  to  a  court  of  competent 
jurisdiction,  and  obtain  the  appointment  of  a  receiver  to  take 
charge  of  and  manage  such  railroad  corporation  until  all  dam- 
ages, penalties,  costs  and  expenses  adjudged  against  such  cor- 


MISSOURI.  489 

poration  for  any  and  every  violation  shall,  together  with  inter- 
est, be  fully  satisfied.     Id.  sec.  2G17. 

Coiisiguiiieiits  to  elevators,  etc.,  declared  temporary  : 

All  consignments  of  grain  to  any  elevator  or  {niljiic  warehouse 
shall  bo  hold  to  be  temporary,  and  subject  to  change  l)y  the 
consignee  or  consignor,  at  any  time  previous  to  the  actual  un- 
loading of  such  property  from  the  cars  in  which  it  is  transported. 
Notice  of  any  change  in  consignment  may  be  served  by  the  con- 
signee or  any  agent  of  the  railroad  corporation  having  the  prop- 
erty in  i)ossession,  who  may  l)o  in  charge  of  the  l)usiness  of  such 
corporation  at  the  point  whore  such  property  is  to  be  delivered; 
and  if,  after  such  notice,  and  while  the  same  remains  uncan- 
celled, such  property  is  delivered  in  any  way  'different  from 
such  altered  or  changed  consignment,  such  railroad  corpora- 
tion shall,  at  the  election  of  the  consignee  or  person  entitled  to 
control  such  property,  be  deemed  to  have  illegally  appropriated 
such  property  to  its  own  use,  and  shall  be  liable  to  pay  the  owner 
or  consignee  of  such  property  the  value  of  the  property,  and  shall 
forfeit  and  pay  to  the  owner  or  consignee  the  sum  of  twenty-five 
dollars,  to  be  recovered  by  civil  action  before  any  court  of  com- 
petent jurisdiction;  and  no  extra  charge  shall  be  permitted  by 
the  corporation  having  the  custody  of  such  property  in  conse- 
quence of  such  change  of  consignment.     Id.  sec.  2618. 

No  discri 111  illation  allowed  in  shipping  grain— Grain  to  be 
weighed  and  shortage  made  up  : 

Every  railroad  corporation  chartered  by  or  organizetl  under 
the  laws  of  this  state,  or  doing  business  within  the  limits  of  the 
same,  when  desired  by  any  person  wishing  to  ship  any  grain 
over  its  road,  shall  receive  and  transport  such  grain,  in  bulk  or 
otherwise,  within  a  reasonable  time,  and  load  the  same  either 
upon  its  track,  at  its  depot,  or  at  any  warehouse  adjoining  its 
track  or  side  track,  without  distinction,  discrimination  or  favor 
between  one  shipper  and  another,  and  without  distinction  or 
discrimination  as  to  the  manner  in  which  such  grain  is  offered 
to  it  for  transportation,  or  as  to  the  person,  warehouse  or  place 
to  whom  or  to  which  it  may  be  consigned;  and  at  all  stations 
where  scales  are  required  to  be  kept,  at  the  time  such  grain  is 


490  .MISSOUP.l     LAWS. 

received  by  it  for  transportation,  such  corporation  shall  care- 
fully and  correctly  weigh  the  same,  and  issue  to  the  shipper 
thereof  a  receipt  or  bill  of  lading  for  such  grain,  in  which  shall 
be  stated  the  true  and  correct  weight,  and  such  corporation 
shall  weigh  out  and  deliver  to  such  shipper,  his  consignee  or 
other  person  entitled  to  receive  the  same,  at  the  place  of  de- 
liver}^  the  full  amount  of  such  grain,  without  any  deduction 
for  leakage,  shrinkage  or  other  loss  on  the  quantity  of  the  same, 
except  that  one  half  of  one  per  cent  shall  be  allowed  for  leakage, 
shrinkage  or  other  loss  on  bulk  grain.  In  (k^fault  of  such  de- 
livery, the  corporation  so  failing  to  deliver  the  full  amount  of 
such  grain  shall  pay  to  the  person  entitled  thereto  the  full  mar- 
ket value  of  any  such  grain  not  delivered  at  the  time  and  place 
when  and  where  the  same  should  have  been  delivered.  Id. 
sec.  2620r. 

Note.  Companies  may  be  incorporated  for  the  purpose  of  conducting 
the  warehouse  business  uuder  chapter  xii,  art.  ix,  Revised  Statutes  of  Mis- 
souri, 1899. 


MISSOURI.  491 

DECISIONS  AFFECTING  WAREHOUSEMEN. 

A. 

Warehouse — Definition . 

There  is  no  technical  meaning  to  the  word  warehouse  differ- 
ent from  its  onhnary  significance  of  storehouse.  The  State  v. 
Watson,  141  Mo.  338;  The  State  v.  Sprague,  149  Mo.  409. 

Bailment  and  sale — Option  to  pay  for  in  money  or  other  prop- 
erty, effect  thereof. 

Plaintiff  deposited  wheat  in  the  defendant's  warehouse  ;  un- 
der the  agreement  between  them,  defendant  was  obliged  to  de- 
liver a  certain  quantity  of  flour  or  of  bran,  proportional  to  the 
amount  of  wheat  deposited.  Before  demand  made,  ware- 
house and  contents  were  destroyed  by  fire.  The  court  held 
that  in  view  of  the  fact  that  the  wheat  of  the  various  depositors 
was  mingled  with  other  wheat  deposited,  and  that  all  of  the 
depositors  had  a  right  to  demand,  according  to  the  terms  of  the 
contract,  so  much  flour  and  bran  for  each  bushel  of  wheat 
deposited,  and  not  the  flour  and  bran  manufactured  out  of  the 
wheat  deposited  by  them,  such  a  transaction  could  be  regarded 
in  no  other  light  than  as  a  sale,  and  was  wholly  inconsistent 
with  the  character  of  bailment.  O'Neil  v.  Stone,  79  Mo.  App. 
279;  Martin  v.  Ashland  Milling  Co.,  49  Mo.  App.  23;  Smith  v. 
Clark,  21  Wend.  23,  overruling  Seymour  v.  Brown,  19  Johns.  44. 
See  also  Hurd  v.  West,  7  Cow.  752;  Pierce  v.  Schenck,  3  Hill,  28; 
Norton  v.  Woodruff,  2  N.  Y.  153;  Mallroy  v.  Willis,  2  N.  Y.  76. 

B. 

Ordinary  care. 

Warehousemen  are  only  bound  to  take  reasonable  care  of 
property  and  are  only  answerable  for  losses  occasioned  by  de- 
fault and  neglect.  Gashweiler  v.  Wabash,  St.  Louis  &  Pacific 
R.  R.  Co.,  83  Mo.  112;  Holtzclaw  et  al.  v.  Duff,  27  Mo.  392. 

Same — What  constitutes — When  a  question  for  the  jury  and  when 
for  the  court. 

What  constitutes  a  requisite  diligence  and  care  to  be  exer- 
cised by  a  warehouseman  is  always  one  to  be  determined  by 


492  MISSOURI    DECISIONS. 

the  jury,  in  \dew  of  the  surrounding  circumstances,  when  there 
is  substantial  evidence  upon  which  to  submit  to  the-m  such  an 
issue;  but  in  the  absence  of  such  evidence,  it  becomes  a  question 
of  law  to  be  determined  by  the  court.  American  Brewing  Assn. 
V.  Talbot  et  al,  141  Mo.  674. 

Conversion — What  constitutes . 

The  action  of  one  in  withholding  property  from  the  real  owner 
thereof,  when  demand  has  been  made  upon  him  for  it,  is  in  law 
a  conversion  thereof.  Foster  Woolen  Co.  v,  Woolman,  87  Mo. 
App.  658;  Rembaugh  v.  Phipps,  75  Mo.  422. 

G. 

Government  bonded  warehouse — Vendor's  lien — Non-negotiable 
receipt. 

The  plaintiff  sued  the  defendant  for  the  conversion  of  a  num- 
ber of  barrels  or  whiskey,  to  which  plaintiff  alleged  he  was  en- 
titled, pursuant  to  the  receipt  issued  therefor,  by  one  who  had 
purshased  the  whiskey  from  the  defendant.  It  appeared  that 
the  defendant  hatl  not  been  paid  in  full  for  the  whiskey  when 
sold,  but  had  accepted  the  purchaser's  notes  in  payment  of 
the  balance  due.  Thereupon  the  whiskey  was  stored  in  a 
government  bonded  warehouse.  The  purchaser  subsequently 
pledged  the  whiskey  with  the  plaintiff,  for  the  payment  of  a 
loan  and,  as  security  therefor,  delivered  to  him  a  non-negotiable 
warehouse  receipt.  From  the  above  facts,  the  court  held  that 
the  warehouse  receipt  in  question  only  had  the  effect  of  trans- 
ferring the  title  of  the  whiskey  to  the  plaintiff,  as  security  for 
his  debt,  and  was  not  for  value  in  a  sense  that  would  extinguish 
the  equitable  right  of  the  defendant  to  his  vendor's  lien,  and 
that,  therefore,  the  defendant  had  a  lien  thereon  for  the  amount 
of  the  unpaid  purchase  price.  Vogelsang's  Admr.  v.  Fisher,  128 
Mo.  386. 

^ame — Vendor's  lien  not  lost  by  placing  goods  therein — Nature 
of  this  lien  fully  considered. 

Where  whiskey  was  placed  in  a  government  bonded  ware- 
house, it  was  held  that  the  vender's  lien  was  not  destroyed; 
that  a  delivery  to  such  warehouse  was  not  a  delivery  to  the 


MISSOURI.  493 

vendee  so  as  to  impair  the  lion  (jf  the  vendor.  The  existence 
of  the  vendor's  lien  presujjposes  that  the  title  to  the  goods  has 
passed.  It  is  in  no  sense  a  right  to  rescission,  but,  on  the  con- 
trary, proceeds  in  affirmation  of  the  contract  of  sale.  It  is  in 
the  nature  of  a  pledge  raised  or  created  by  law  upon  the  hap- 
pening of  the  insolvency  of  the  vendee,  to  secure  the  unpaid 
purchase  money  to  the  vendor.  Conrad  v.  Fisher,  37  Mo. 
App.  352. 

H. 

Warehouseman's  lien— Goods  stored  by  sheriff— Warehouseman 
protected — Lien  highly  favored  by  law. 

The  sheriff  attached  goods,  in  an  action  against  the  owner 
thereof,  and  stored  them  with  the  defendant  warehouseman, 
for  safe-keeping.  The  judgment  against  the  owner  was  dis- 
charged and  the  attachment  released.  The  owner  thereuix)!! 
demanded  the  goods  of  the  defendant,  who  refused  to  surrender 
the  same  unless  his  storage  charges  were  paid,  he  claiming  to 
have  a  lien  against  the  goods  therefor.  The  court  held  that 
the  defendant's  lien  remained  after  the  attachment  was  dis- 
solved, and  was  as  binding  and  as  effectual  as  if  the  property 
had  been  stored  by  the  plaintiff  himself,  instead  of  by  the  con- 
stable, who  was  authorized  to  do  so  by  law.  A  warehouseman's 
lien  is  highly  favored,  and  the  law  is  against  presuming  a  waiver 
or  extinguishment  of  it.  Further  held  that  the  possession  by 
the  sheriff  was  the  same  as  possession  by  a  receiver;  in  each 
instance  the  goods  are  in  custody  of  the  court.  Ca.se  Plow 
Works  V.  Union  Iron  Works,  56  Mo.  App.  1 ;  Ward  v.  Moffett, 
38  Mo.  App.  400;  Wijcoff  v.  Southern  Hotel  Co.,  24  Mo.  App.  382; 
Kneeland  v.  American  Loan  &  Trust  Co.,  136  U.  S.  89. 

Same — Subordinate  to  right  of  mortgagee  under  chattel  mortgage. 

Where  a  mortgagor  of  goods,  without  the  consent  of  the  mort- 
gagee, under  a  chattel  mortgage,  stored  the  same,  it  was  held 
that  the  lien  of  the  warehouseman,  for  charges,  was  inferior  to 
the  right  of  the  mortgagee.     Vette  v.  Leonori,  42  Mo.  App.  217. 

Same — Tender  of  amount  due  necessary  to  avoid  lien — Excess- 
ive demand. 

The  mere  fact  that  the  demand,  made  by  the  bailee  of  prop- 


494  iMlSSOURI   DECISIONS. 

erty,  was;  either  i)reiiiature  or  excessive  did  not  avoid  his  lien 
from  the  amount  justly  chargeable  to  the  bailor.  If  the  bailee 
desired  to  terminate  the  lien  all  he  had  to  do  was  to  tender  the 
amount  which  was  justly  due.  Muench  v.  Valley  National 
Bank,  11  Mo.  App.  144;  Montieth  v.  Great  Western  Printing  Co., 
16  Mo.  App.  450. 

L. 

Replevin — Bailee  may  maintain. 

A  person  in  possession  of  goods  as  bailee  may  maintain  an 
action  of  replevin  against  all  persons  except  the  true  owner, 
and  even  against  him  if  he  has  a  lien  for  services,  advances, 
and  the  like,  upon  them.     S^iowden  v.  Kessler,  76  Mo.  App.  581. 

M. 

Pledge — Right  to  possession. 

The  pledgor  has  no  right  to  the  possession  of  the  pledge  until 
he  pays,  or  offers  to  pay,  what  he  owes.  Any  damage  he  sus- 
tains by  the  wrongful  sale  on  account  of  injury  actually  done 
to  his  property,  or  expense  of  getting  it  back,  he  may  recover 
by  the  appropriate  action.  But  the  pledge  itself,  or  its  value, 
he  may  only  recover  by  keeping  his  undertaking.  Schaaf, 
Admr.,  v.  Fries,  90  Mo.  App.  111. 

N. 

Misdelivery — When  warehouseman  not  liable. 

A  warehouseman  is  not  responsible  for  the  delivery  of  prop- 
erty intrusted  to  him  to  one  who  presents  a  proper  bill  of  lading 
therefor,  the  warehouseman  making  proper  inquiry,  such  as 
would  be  satisfactory  to  a  prudent  business  man.  Bush  v.  St. 
Louis,  K.  C.  &  N.  Ry.  Co.,  3  Mo.  App.  62. 

Act  of  God — Lost  by  flood — Unprecedented  rise  in  river — Burden 
of  proof  and  the  shifting  thereof. 

The  defendants  operated  a  warehouse  situated  upon  the  river 
front.  After  unprecedented  rains,  water  arose  in  the  cellar  of 
the  warehouse,  and  the  defendants  thereupon  removed  the 
goods  stored  to  the  upper  portions  thereof.  Subsequently  the 
warehouse  collapsed.  It  was  held  that  the  warehouseman  was 
not  liable;  that  such  result  was  from  inevitable  accident,  or 


MISSOURI.  495 

what  is  termed  act  of  God.  In  such  a  case,  the  burden  of  proof 
is  first  upon  the  bailor  to  prove  the  contract  and  deUvery  of  the 
goods,  then  upon  the  bailee  to  show  the  loss  and  manner  thereof; 
the  burden  then  again  shifts  to  the  bailor  to  establish  that  the; 
loss  was  due  to  the  bailee's  negligence.  American  Brewing 
Assn.  V.  Tolhot  et  ai,  141  Mo.  674.  See  also  Fucks  v.  .S7.  Louis 
et  ciL,  133  Mo.  168,  the  doctrine  of  which  was  challenged  by 
Sherwood,  J.,  in  former  decision. 

Same — Larceny  aiid  burglary — Warehouse  and  storehouse  sy- 
nonymous. 

An  indictment  charged  burglary  and  larceny  from  a  store- 
house. It  was  insisted,  on  behalf  of  the  defendant,  that  the 
trial  court  erred  in  allowing  evidence  to  be  introduced  for  bur- 
glary of  a  warehouse  and  larceny  therefrom.  The  court,  an- 
swering the  above  contention,  stated  that  as  the  defendant 
was  guilty  of  burglary,  it  did  not  concern  him  if  there  was 
an  improper  designation  of  the  building  burglarized,  and  sec- 
ondly, the  words  warehouse  and  storehouse  were  synonymous. 
State  V.  Sprague,  149  Mo.  409. 

P. 

Contract  to  insure  goods — Warehouseman  liable. 

Where  a  warehouseman  agreed  with  the  owner  of  goods  stored 
with  him,  at  the  time  of  deposit,  to  have  the  same  fully  insured 
against  fire,  he  is  liable  for  the  value  thereof,  in  case  of  their 
destruction  from  this  cause.  Dawson  v.  Waldheim,  80  Mo.  App. 
52;  Ferguson  v.  Pekin  Plow  Co.,  141  Mo.  161. 

Loss  by  fire — Evidence  as  to  location  of  warehouse — Pleading. 

The  defendant  was  sued,  charged  with  liability  as  a  ware- 
houseman, for  the  destruction  by  fire  of  goods  belonging  to  the 
plaintifT,  stored  in  the  defendant's  warehouse.  The  petition 
alleged  that  the  defendant  failed  and  neglected  to  exercise  rea- 
sonable care  of  said  flour  while  so  stored.  It  was  not  alleged 
that  by  reason  of  the  proximity  of  the  warehouse  to  a  refining 
establishment,  the  warehouse  was  not  a  safe  place  in  which  to 
store  the  flour.  On  the  above  pleadings  it  was  held  that  evi- 
dence tending  to  prove  that  the  defendant  owned  the  projierty 


496  MISSOURI   DECISIONS. 

upon  which  the  refining  works  were  situated,  and  that  such 
works  were  of  very  inflammable  nature,  etc.,  was  properly  ex- 
cluded. Standard  Milling  Co.  v.  White  Line  C.  T.  Co.,  122 
Mo.  258. 

Warehouse  receipts — Issued  by  warehouseman  against  his  own 
goods  not  a  "  warehouse  receipt." 

A  receipt  issued  by  the  owner  of  goods,  stored  in  his  own 
store,  is  not  a  warehouse  receipt.  Conrad  v.  Fisher,  37  Mo. 
App.  352  ;  Valley  National  Bank  v.  Frank,  12  Mo.  App.  460 ; 
Thome  v.  First  National  Bank,  37  Oh.  St.  254;  Adams  v.  Mer- 
chants' National  Bank,  2  Fed.  Rep.  174;  S.  C,  9  Biss.  (U.  S.) 
396;  Yenni  v.  McNamee,  45  N.  Y.  614;  Farmers'  Bank  v.  Lang, 
87  N.  Y.  209. 

Same — Negotiability — Payable  to  bearer — Not  negotiable. 

Warehouse  receipts,  made  payable  to  bearer,  not  transferable 
by  indorsement,  are  not  negotiable  as  mercantile  paper.  There 
must  be  both  a  delivery  and  indorsement  to  confer  upon  a  ware- 
house receipt  the  negotiability  of  mercantile  paper.  The  trans- 
fer of  cotton  notes  or  receipts  gives  to  transferee  no  greater 
right  than  he  would  have  acquired  by  the  delivery  of  the  goods 
themselves.  Warehouse  receipts  or  cotton  notes  represent  the 
cotton  itself,  and  a  pledge  thereof  is  as  effectual  as  a  pledge  of 
the  cotton  itself.  Erie  &  Pacific  Despatch  v.  Compress  Co.,  6 
Mo.  App.  172;  Fourth  National  Bank  v.  St.  Louis  Cotton  Comp. 
Co.,  11  Mo.  App.  333;  Shaw  v.  Railroad  Co.,  101  U.  S.  557. 

Same — Same — Transfer  to  assignee  of  holder  not  negotiation. 

The  owner  of  certain  goods  shipped  the  same  to  his  agent, 
who  sold  part  of  the  same  and  stored  the  portion  sold  in  the 
warehouse  of  the  defendant.  The  warehouseman  issued  a  re- 
ceipt therefor  to  the  purchaser,  which  receipt,  upon  the  insol- 
vency of  the  purchaser,  passed  to  his  assignee.  In  an  action 
brought  by  the  owner  for  the  recovery  of  the  goods,  it  was  held 
that  the  receipt,  in  the  hands  of  the  assignee,  gave  no  claim  to 
him  as  against  the  owner;  that  the  owner  would  not  be  required 
to  recover  the  receipt,  but  he  could  obtain  possession  of  the 
property,  and  that  the  statute  in  relation  to  warehouse  receipts 


MISSOURI.  497 

was  not  intended  for  such  a  case  as  this.     Jones  et  al.  v.  Evam 
el  al,  62  Mo.  375. 

Same — Collateral  security. 

A  valid  pledge  of  property  may  be  made  by  the  delivery  of 
the  bill  of  sale,  copy  of  ganger's  return,  and  warehouse  receipts, 
for  thes(>  are  symbols  of  the  property  itself.  Conrad  v.  Fisfier, 
37  Mo.  App.  352. 

Same — Attornment  by  warehouseman  not  necessary. 

Attornment  by  a  warehouseman  is  not  required  by  the  laws 
of  Missouri  in  order  to  complete  a  symbolical  delivery.  In  fact, 
the  general  rule  in  this  country  is  that  such  attornment  is  not 
necessary ;  in  Massachusetts  it  appears  that  the  English  doctrine 
of  attornment  has  been  followed.     Id. 

Same — What  constitutes. 

A  negotiable  warehouse  receipt  is  one  given  for  goods  stored 
or  deposited.  It  must  contain  an  obligation  to  hold  the  prop- 
erty, represented  thereby,  in  store.  An  instrument  which  is 
in  effect  an  agreement  to  ship  the  goods  is  not  such  a  receipt. 
Union  Savings  Assn.  v.  St.  Louis  Grain  Elevator  Co.,  81  Mo.  341; 
Same  v.  Same,  16  Mo.  App.  560. 

R. 

Bill  of  lading — Transfer  thereof. 

The  transfer  of  a  bill  of  lading  passes  the  title  of  the  prop- 
erty represented  thereby.  The  holder  of  such  bill  holds  the 
legal  title  to  the  goods,  and  is  entitled  to  all  the  rights  of  a  bona 
fide  purchaser  for  value,  and  when  the  consignor  transfers  the 
bill  of  lading  for  value,  he  loses  his  control  over  the  goods,  and 
has  no  right,  therefore,  to  give  directions  to  the  carrier  with 
regard  to  transportation.  White  Live  Stock  Co.  v.  Chicago, 
Milwaukee  &  St.  Paul  R.  R.  Co.,  87  Mo.  App.  330;  Dymock  v. 
Railroad,  54  Mo.  App.  400;  Bank  v.  Railroad,  62  Mo.  App.  531; 
Obert  V.  Railroad,  13  Mo.  App.  81. 

Same — Receipt  and  contract — Parol  testimony. 
A  bill  of  lading  partakes  of  the  nature  of  a  receipt,  and  of  a 
32 


498  MISSOURI   DECISIONS. 

contract.  So  much  as  partakes  of  the  nature  of  a  receipt  may 
be  explained  or  contradicted  by  parol  testimony.  Steamboat 
Missouri  v.  Webb,  9  Mo.  192. 

Indictment — Theft  from  warehouse. 

The  defendant  was  indicted  for  theft  from  a  granary  warehouse 
and  building,  the  same  being  a  building  in  which  divers  goods 
and  various  things  were  kept  for  sale  and  deposit.  It  was  con- 
tended by  the  defendant  that  this  description  did  not  include 
a  warehouse,  the  objection  being  that  the  word  granary,  before 
the  word  warehouse,  was  used  as  an  adjective  to  qualify  the 
following  word.  It  was  held  that  this  contention  could  not  be 
sustained.     State  v.  Watson,  141  Mo.  338. 

T. 

Unlawful  sale  by  warehouseman— Requisites  of  indictment. 

Section  742,  R.  S.  1889,  provides  that  it  shall  be  unlawful  for 
a  warehouseman  to  sell  or  permit  the  removal  of  goods  from  his 
warehouse,  without  the  assent  of  the  holder  of  the  receipt. 
Therefore,  it  was  held  that  under  this  section,  it  must  be  affirm- 
atively charged,  in  the  indictment  against  the  warehouseman, 
for  the  violation  of  its  provisions,  that  he  sold  or  removed  the 
stored  property  without  the  assent  of  the  holder  of  the  receipt 
therefor.     State  v.  Kirby,  115  Mo.  440. 

U. 

Constitutionality  of  act  relating  to  warehouse  receipts  under  sec- 
tion 32,  article  4,  of  the  constitution  of  Missouri. 

Section  32,  article  4,  of  the  constitution  of  the  state  of  Mis- 
souri declares:  "No  law  enacted  by  the  general  assembly  shall 
relate  to  more  than  one  subject,  and  that  shall  be  expressed  in 
the  title."  Defendant  was  indicted  for  selling  and  disposing 
of  grain  for  which  he  had  not  paid,  under  the  section  of  the  act 
entitled,  "An  act  to  prevent  the  issue  of  false  receipts  or  bills 
of  lading  and  to  punish  fraudulent  transfers  of  property  by 
warehousemen,  wharfingers,  and  others."  It  was  contended, 
in  behalf  of  the  defendant,  that  as  the  section  in  said  act  pro- 
vided that  any  person  who  shall  purchase  any  goods  or  other 
commodity,  for  cash,  and  sell,  hypothecate,  or  pledge  the  same 


MISSOURI.  499 

to  another,  and  use  the  proceeds  thereof  for  any  other  purposes 
than  the  payment  af  the  purchase  price,  with  intent  to  cheat 
or  defraud  such  vendor,  shall  be  guilty  of  a  felony,  was  uncon- 
stitutional and  void  for  the  reason  that  it  was  not  germane  to 
the  subject  of  the  act  nor  included  in  the  title  thereof. 

The  court  held  that  an  exact  and  strict  compliance  witii  the 
letter  of  the  constitutional  provisions  is  almost  impracticable, 
and  that  the  nature  and  object  of  this  act  was  clearly  within 
its  title,  for,  by  a  fair  construction  thereof,  it  related  to  a  class 
of  defenses  of  a  kindred  character,  all  connected,  blended,  and 
germane.     State  of  Missouri  v.  Miller,  45  Mo.  495. 

Erection  of  warehouse  on  public  ground  permitted — Use  a  public 
one. 

The  city  of  St.  Louis  leased  to  the  defendant  part  of  its  wharf 
for  the  purpose  of  the  erection  of  a  warehouse  thereon.  The 
lease  could  be  terminated  by  the  city  upon  six  months'  notice 
to  the  lessee.  The  warehouseman  served  the  public  by  receiv- 
ing grain  from  the  boats  on  the  Mississippi  river.  It  was  con- 
tended that  the  lease  to  the  defendant  was  void  on  the  ground 
that  it  was  a  use  of  public  property  for  private  purposes.  The 
court  held  that  this  contention  could  not  l)e  sustained;  that  as 
a  warehouseman  could  show  no  favoritism  and  was  obliged  to 
receive  property  for  storage  as  long  as  he  had  room  therefor,  the 
property  was  clothed  with  and  had  attached  to  it  a  public  trust ; 
further,  that,  like  a  railroad  or  steamboat,  the  property  is  private 
and  is  operated  for  private  gain,  but  the  use  is  public.  Belcher 
Sugar  Refining  Co.  v.  St.  Louis  Grain  Elevator  Co.,  101  Mo.  192. 
Where  the  city  had  leased  the  property  to  the  defendant  uncon- 
ditionally, it  was  there  held  that  such  lease  was  void.  See 
Belcher  Sugar  Refining  Co.  v.  St.  Louis  Grain  Elevator  Co.,  82 
Mo.  121. 

Charges  for  storing  grain  may  be  regulated  by  state. 

Where  an  elevator  company  is  engaged  in  the  business  of 
storing  grain,  and  is  doing  business  in  all  respects  as  a  public 
warehouseman,  it  is  engaged  in  a  public  trust,  is  subject  to  pub- 
lic regulations,  and  the  state  may  prescribe  regulations  even  as 
to  the  charges  of  storage.     Belcher  Sugar  Refining  Co.  v.  St. 


500  MISSOURI    DECISIONS. 

Louis  Grain  Elevator  Co.,  101  Mo.  192;  Muim  v.  Illinois,  69  111. 
80,  aff'cl  94  U.  S.  113.  See  also  State  ex  ret.  Star  Puh.  Co.  v. 
Associated  Press,  159  Mo.  410,  in  which  the  doctrine  of  Munn 
V.  Illinois  is  severely  criticised.  See  also  People  v.  Budd,  117 
N.  Y.  1,  aff'd  143  U.  S.  517;  North  Dakota  ex  rel.  Stoeser  v.  Brass, 
2  N.  D.  482,  aff'd  153  U.  S.  391.  See  note  to  People  v.  Budd  in 
New  York  decisions,  this  volume,  page  601. 


MONTANA,  oOl 


CHAPTER  XXVI. 
MONTANA. 

LAWS  PERTAINING  TO   WAREHOUSEMEN. 

Issuing  fictitious  bills  of  lading,  etc.: 

Every  person  being  the  master,  owner,  or  agent  of  any  vessel, 
or  officer  or  agent  of  any  railroad,  express  or  transportation 
company,  or  otherwise  being  oi-  representing  any  carrier,  who 
dehvers  any  bill  of  lading,  receipt,  or  other  voucher,  by  which 
it  appears  that  any  merchandise  of  any  description  has  been 
shipped  on  board  any  vessel,  or  delivered  to  any  railroad,  ex- 
press or  transportation  company,  or  other  carrier,  unless  the 
same  has  been  so  shipped  or  delivered,  and  is  at  the  time  actu- 
ally under  the  control  of  such  carrier,  or  the  master,  owner,  or 
agent  of  such  vessel,  or  of  some  officer  or  agent  of  such  com- 
pany, to  be  forwarded  as  expressed  in  such  bill  of  lading,  re- 
ceipt or  voucher,  is  punishable  by  impiisonment  in  the  state 
prison  not  exceeding  five  years,  or  by  a  fine  not  exceeding  one 
thousand  dollars,  or  both.     Code  of  Mont.  1895,  sec.  1020. 

Issuing  fictitious  warehouse  receipts  : 

Every  person  carrying  on  the  business  of  a  warehouseman, 
wharfinger,  or  other  depositary  of  property,  who  issues  any 
receipt,  bill  of  lading,  or  other  voucher  for  any  merchandise 
of  any  description,  which  has  not  been  actually  received  upon 
the  premises  of  such  person,  and  is  not  under  his  actual  control 
at  the  time  of  issuing  such  instrument,  whether  such  in.>^tru- 
ment  is  issued  to  a  person  as  being  the  owner  of  such  merchan- 
dise, or  as  security  for  any  indebtedness,  is  punishable  by  im- 
prisonment in  the  state  prison  not  exceeding  five  years,  or  by  a 
fine  not  exceeding  one  thousand  dollars,  or  both.     Id.  sec.  1021, 

Erroneous  bills  of  lading  or  receipts  issued  in  good  faith : 

No  person  can  be  convicted  of  any  offense  under  the  last  two 


502  MONTANA    LAWS. 

sections  by  reason  that  the  contents  of  any  barrel,  box,  cask, 
or  other  vessel  or  package  mentioned  in  the  bill  of  lading,  re- 
ceipt, or  other  voucher,  did  not  correspond  with  the  descrip- 
tion given  in  such  instrument  of  the  merchandise  received,  if 
such  description  corresponded  substantially  with  the  marks, 
labels,  or  brands  upon  the  outside  of  such  vessel,  or  package, 
unless  it  appears  that  the  accused  knew  such  marks,  labels,  or 
brands  were  untrue.     Id.  sec.  1022. 

Duplicate  receipts  must  be  marked  "  duplicate  "  : 

Every  person  mentioned  in  this  chapter,  who  issues  any 
second  or  duplicate  receipt  or  voucher,  of  a  kind  specified  there- 
in, at  a  time  while  any  former  receipt  or  voucher  for  the  mer- 
chandise specified  in  such  second .  receipt  is  outstanding  and 
uncancelled,  without  writing  across  the  face  of  the  same  the 
word  "duplicate"  in  a  plain  and  legible  manner,  is  punishable 
by  imprisonment  in  the  state  prison  not  exceeding  five  years, 
or  by  a  fine  not  exceeding  one  thousand  dollars,  or  both.  Id. 
sec.  1023. 

Selling,  etc.,  property  received  for  transportation  or  stor- 
age : 

Every  person  mentioned  in  this  chapter  who  sells,  hypothe- 
cates or  pledges  any  merchandise  for  which  any  bill  of  lading, 
receipt,  or  voucher  has  been  issued  by  him,  without  the  con- 
sent in  writing  thereto  of  the  person  holding  such  bill,  receipt 
or  voucher,  is  punishable  by  imprisonment  in  the  state  prison 
not  exceeding  five  years,  or  by  a  fine  not  exceeding  one  thou- 
sand dollars,  or  both.  The  provisions  of  this  section  do  not 
apply  where  the  property  is  demanded  or  sold  under  process 
of  law.     Id.  sec.  1024. 

Sales  of  explosives  after  dark  : 

No  person  or  persons  shall  store,  or  keep  in  any  store,  ware- 
house, or  any  other  building  within  the  limits  of  any  unincor- 
porated town  or  village,  more  than  five  thousand  giant  caps  at 
any  one  time,  or  any  coal  oil,  kerosene  or  petroleum,  exceed- 
ing sixty  gallons,  other  than  in  original  packages,  within  the 
limits  of  the  said  unincorporated  town  or  village,  or  shall  sell, 


MONTANA.  r>03 


lend,  barter  or  dispose  of,  or  deliver  or  receive  the  same,  or  any 
or  either  of  the  said  articles  or  materials,  in  the  section  herein 
enumerated,  after  dark,  l)y  the  aid  of  any  lamp,  lantern,  candle, 
match  or  other  artificial  light,  except  electric  light.  Id. 
sec.  718. 


504  MONTANA    DECISIONS. 


DECISIONS  AFFECTING  WAREHOUSEMEN. 

B. 

Bill  of  lading — Transfer  of — Statute  of  frauds. 

The  transmission  of  a  bill  of  lading  amounts  to  the  actual 
delivery  of  the  possession  of  the  property  described  in  it,  and 
is  a  compliance  with  the  statute  of  frauds  as  to  the  sale  and 
delivery  of  property.  First  Nat.  Bank  v.  McAndrews  et  at., 
5  Mont.  325;  Wetzel  et  al.  v.  Power  et  ah,  5  Mont.  214;  Walsh  v. 
Blakeley,  6  Mont.  194. 


NEBRASKA.  ^Q[ 


CHAPTER  XXVII. 
NEBRASKA. 

LAWS   PERTAINING  TO   WAREHOUSEMEN. 

Descriptiou  of  property : 

Whenever  any  personal  property  shall  be  consigned  to,  or 
deposited  with,  any  forwarding  merchant,  wharf  keeper,  ware- 
house keeper,  tavern  keeper,  or  the  keeper  of  any  depot  for  the 
reception  and  storage  of  trunks,  baggage,  and  other  personal 
property,  such  consignee  or  bailee  slvdW  immediately  cause  to 
be  entered  in  a  book  to  be  provided  and  kept  by  him  for  that 
purpose,  a  description  of  such  property,  with  the  date  of  the 
reception  thereof.     Compiled  Statutes,  Neb.  1901,  sec.  5344. 

Notice  to  owner : 

If  such  property  shall  not  have  been  left  with  such  consignee 
or  bailee  for  the  purpose  of  being  forwarded  or  otherwise  dis- 
posed of,  according  to  directions  received  by  such  consignee  or 
bailee,  at  or  before  the  time  of  the  reception  thereof,  and  the 
name  and  residence  of  the  owner  of  such  property  be  known  or 
ascertained,  the  person  having  such  property  in  his  custody 
shall  immediately  notify  such  owner,  by  letter  to  be  directed 
to  him  and  deposited  in  a  post-office  to  be  transmitted  by  mail, 
of  the  reception  of  such  property.     Id.  sec.  5345. 

Unclaimed  property — Sale  : 

In  case  any  such  property  shall  remain  unclaimed  for  three 
months  after  its  reception  as  aforesaid,  the  person  having  pos- 
session thereof  shall  cause  a  notice  to  be  published  once  in  each 
week  for  four  successive  weeks,  in  a  newspaper  publisher!  in 
the  same  county,  if  there  be  one,  and  if  not,  then  in  some  paper 
published  at  the  seat  of  government,  describing  such  property, 
and  specifying  the  time  when  it  was  received,  and  stating  that 
unless  such  property  shall  be  claimed  within  three  months  from 
the  first  publication  of  such  notice,  and  the  lawful  charges  there- 


506  NEBRASKA    LAWS. 

on  paid,  the  same  will  be  sold  according  to  the  statute  in  such 
case  made  and  provided.     Id.  sec.  5346. 

Same— Proceedings  before  justice  : 

In  case  the  owner  or  persons  entitled  to  such  property  shall 
not,  within  three  months  after  the  publication  of  such  notice, 
claim  such  property  and  pay  the  lawful  charges  thereon,  in- 
cluding the  expenses  of  such  publication,  the  person  having 
possession  of  the  property,  his  agent,  or  attorney,  may  make 
and  deliver  to  any  justice  of  the  peace  of  the  same  county  an 
affidavit,  setting  forth  a  description  of  the  property  remaining 
unclaimed,  the  time  of  its  reception,  the  publication  of  the  no- 
tice, and  whether  the  owner  of  such  property  is  known  or  un- 
known.    Id.  sec.  5347. 

Same: 

Upon  the  delivery  to  him  of  such  affidavit,  the  justice  shall 
cause  such  property  to  be  opened  and  examined  in  his  presence, 
and  a  true  inventory  thereof  to  be  made,  and  shall  make  and 
annex  to  such  inventory  an  order  under  his  hand  that  the  prop- 
erty therein  described  be  sold  by  the  sheriff  of  the  county  where 
the  same  shall  be,  at  public  auction,  upon  due  notice.  Id. 
sec.  5348. 

Notice : 

It  shall  be  the  duty  of  the  sheriff  receiving  such  inventory 
and  order,  to  give  ten  days'  notice  of  the  sale  by  posting  up 
written  notices  thereof  in  three  public  places  in  the  county  or 
city,  and  to  sell  such  property  at  public  auction  for  the  highest 
price  he  can  obtain  therefor.     Id.  sec.  5349. 

Sheriff's  return : 

Upon  completing  the  sale,  the  sherifT  making  the  same  shall 
indorse  upon  the  order  aforesaid  a  return  of  his  proceedings 
upon  such  order,  and  the  proceeds  of  the  sale  after  deducting 
his  fees,  which  shall  be  the  same  as  upon  an  execution.  Id. 
sec.  5350. 

Expenses : 

From  the  proceeds  of  such  sale  the  justice  shall  pay  the 


NEBRASKA.  507 

charges  and  expenses  legally  iricurrecl  in  respect  to  such  prop- 
erty, or  a  ratable  proportion  to  each  claimant  if  there  be  not 
sufficient  to  pay  the  whole;  and  such  justice  shall  ascertain 
and  determine  the  amount  of  such  charges  in  a  summary  man- 
ner, and  shall  be  entitled  to  three  dollars  for  each  days'  service 
rendered  by  him  in  such  proceeding.     Id.  sec.  5351. 

Avails — Disposition  : 

Such  justice  shall  deliver  to  the  treasurer  of  the  county  in 
which  the  property  was  sold,  the  affidavit,  inventory,  and  order 
of  sale  and  return  hereinbefore  mentioned,  together  with  a 
statement  of  the  charges  and  expenses  incurred  in  respect  to 
such  property  as  ascertained  and  paid  by  him,  with  a  state- 
ment of  his  own  fees,  and  shall  at  the  same  time  pay  over  to 
such  treasurer  any  balance  of  the  proceeds  of  the  sale  remain- 
ing after  payment  of  such  charges,  expenses  and  fees.  Id. 
sec.  5352. 

Duties  of  treasurer : 

The  treasurer  shall  file  in  his  office,  and  safely  keep  all  the 
papers  so  delivered  to  him,  and  make  a  proper  entry  of  the  pay- 
ment to  him  of  any  moneys  arising  from  such  sale  in  the  books 
of  his  office.     Id.  sec.  5253. 

Money  paid  to  owner : 

If  the  owner  of  the  property  sold,  or  his  legal  representatives, 
shall,  at  any  time  within  five  years  after  such  moneys  shall  have 
been  deposited  in  the  county  treasury,  furnish  satisfactory  evi- 
dence of  the  ownership  of  such  j)roi)erty,  he  or  they  shall  be 
entitled  to  receive  from  such  treasurer  the  amount  deposited 
with  him.     Id.  sec.  5354. 

Money  paid  to  school  fund  : 

If  the  amount  so  deposited  with  any  county  treasurer  shall 
not  be  paid  to  such  owner,  or  his  legal  representatives,  within 
the  said  five  years,  such  county  treasurer  shall  pay  such  amount 
into  the  school  fund  of  the  proper  county,  to  be  appropriated 
for  the  support  of  schools.     Id.  sec.  5355. 

Warehouse  receipts — Negotiable — Lien  : 

Any  person,  firm  or  corporation  engaged  in  the  business  of 


508  ISTEBRASKA.  LAWS. 

packing  pork,  or  beef,  or  manufacture  of  distilled  spirits,  or  of 
linseed  oil,  or  raising  chicory  roots,  or  manufacturing  chicory, 
or  producing,  or  owning  or  handling  any  product,  manufactured 
article,  or  merchandise,  or  any  other  article  or  product  capable 
of  being  stored  having  a  warehouse  for  the  storage  of  his  or  its 
own  procKict;  and  any  person,  firm  or  corporation,  being  the 
keeper,  proprietor  or  owner  of  any  elevator,  warehouse,  crib 
or  tank,  wherein  is  stored  any  of  the  products  or  articles  con- 
templated by  this  act  belonging  to  such  keeper,  proprietor  or 
owner,  may  issue  receipts  for  his  or  its  own  property  as  con- 
templated by  this  act,  which  such  persons,  firm  or  corporation 
has  so  stored,  in  the  usual  form  of  warehouse  receipts  which 
shall  have  the  same  force  and  effect  as  the  receipts  issued  by 
the  keeper  of  a  public  warehouse  to  parties  having  property  so 
stored  therein,  which  receipt  shall  be  negotiable  by  indorse- 
ment and  entitle  the  bona  fide  holder  thereof,  advancing  money 
on  the  credit  of  the  same,  to  a  lien  upon  the  property  so  stored 
and  described  therein  for  the  money  so  advanced  as  to  all  sub- 
sequent purchasers  and  creditors  of  any  person  interested 
therein,  from  the  date  of  issuance  of  such  receipts  and  the 
advance  of  the  money.     Id.  sec.  5356. 

Same— Fraudiileiit — Penalty  : 

If  any  person,  or  any  individual  or  officer  of  any  firm  or  cor- 
poration described  in  the  preceding  section,  shall  execute  and 
deliver  or  cause  to  be  executed  and  delivered  to  any  person, 
firm  or  corporation,  false,  fraudulent  or  fictitious  warehouse 
receipts,  acknowledgments  or  other  instruments  in  writing  to 
the  effect  that  the  person,  firm  or  corporation  so  issuing  same 
has  in  store  in  a  warehouse,  elevator,  cribs,  tanks,  or  bins,  any 
of  the  products  or  articles  contemplated  by  this  act,  when  in 
fact  said  article  is  not  so  stored  according  to  the  tenor  and 
effect  of  said  receipt,  acknowledgment  or  writing;  and  if,  hav- 
ing issued  such  receipt  thereon  as  in  the  preceding  section  pro- 
vided, such  person,  individual  or  officer  of  any  firm  or  corpora- 
tion shall  sell,  incumber,  ship,  transfer,  or  in  any  manner  re- 
move beyond  his  or  its  immediate  control  the  property  de- 
scribed in  such  receipt  without  first  having  discharged  the  lien 
by  said  section  thirteen  (13)  sec.  [5356J  provided  without  the 


NEBRASKA.  509 

written  consent  of  the  holder  of  said  receipt,  with  the  intent  to 
deceive,  ilefraud,  or  injuiv  any  person,  firm,  or  corporation 
whomsoever,  or  if  any  such  person,  in(hviduai  or  ofhcer  of  any 
firm  or  corporation  shall  indorse,  assign,  transfer  or  deliver  to 
any  other  person,  firm  or  corporation  any  such  false  or  fraudu- 
lent receipt,  acknowledgment  or  instrument  in  writing,  know- 
ing the  same  to  be  false,  fraudulent  or  fictitious  with  like  in- 
tent, such  person,  individual  or  ofhcer  of  such  firm  or  corpora- 
tion shall  be  adjudged  guilty  of  a  felony  and  upon  conviction 
thereof  shall  be  {xmished  by  a  fine  not  exceeding  one  thousand 
dollars  ($f,000),  and  imprisonment  in  the  penitentiary  of  this 
state  not  exceeding  three  years.     Id.  sec.  5357. 

Elevators  aud  storehouses  declared  public  warehouses  : 

That  all  elevators  or  storehouses  where  grain  or  other  property 
is  stored  for  a  compensation,  whether  the  property  stored  be 
kept  separate  or  not,  are  declared  to  be  public  warehouses.  Id. 
sec.  5358. 

Required  to  make  weekly  statements : 

The  owner,  lessee  or  manager  of  each  and  every  public  ware- 
house shall  make  weekly  statements  under  oath,  on  or  before 
each  Tuesday  up  to  the  close  of  business  of  the  previous  Satur- 
day, before  some  officer  designated  by  law,  and  keep  the  same 
posted  in  some  conspicuous  place  in  the  ofhce  of  such  ware- 
house, and  shall  also  file  a  copy  for  public  examination  in  such 
other  place  or  places  designated  by  law,  which  statement  shall 
correctly  set  forth  the  amount  of  each  and  every  kind  of  grain 
in  such  warehouse,  together  with  such  other  property  as  may 
be  stored  therein,  and  what  warehouse  receipts  have  been  issued 
and  are  at  the  time  of  taking  such  statement,  outstanding 
therefor,  and  in  cities  of  tlie  metropolitan  or  first  class,  the 
owner,  lessee,  or  manager  of  each  public  warehouse  situated 
therein  shall,  in  addition  to  the  above,  note  such  daily  changes 
on  the  copy  posted  in  the  warehouse  as  may  be  made  in  the 
quantity  and  grade  of  grain  in  such  warehouse ;  and  the  differ- 
ent grades  of  grain  shipped  in  separate  lots  shall  not  be  mixed 
with  inferior  lots  without  the  consent  of  the  owner  or  consignee 
thereof.     Id.  sec.  5359. 


510  NEBRASKA   LAWS. 

Owners  at  liberty  to  examiue  property  and  books : 

The  owner  or  owners  of  property  stored  in  any  warehouse, 
or  holder  of  a  receipt  for  the  same,  shall  always  be  at  liberty  to 
examine  such  property  stored  and  all  the  books  and  records  of 
the  warehouse  in  regard  to  such  property.     Id.  sec.  5360. 

Warehouses  classified  : 

All  public  warehouses  as  herein  defined  shall  be  divided  into 
three  classes,  to  be  designated  as  A,  B  and  C,  respectively,  and 
they  shall  receive,  ship,  store  and  handle  the  property  of  all 
alike  without  discrimination.  This  does  not  apply  to  property 
extra  hazardous.     Id.  sec.  5361. 

Classes  defined  : 

Public  warehouses  of  Class  A  shall  embrace  all  warehouses, 
elevators  and  granaries  in  which  grain  is  stored  in  bulk,  and  in 
which  the  grain  of  different  owners  is  mixed  together,  or  in 
which  grain  is  stored  in  such  a  manner  that  the  identity  of 
different  lots  or  parcels  cannot  be  accurately  preserved,  such 
warehouses,  elevators  or  granaries  being  located  in  the  cities  of 
the  metropolitan  or  first  class.  Public  warehouses  of  Class  B 
shall  embrace  all  other  warehouses,  elevators,  or  granaries  in 
which  grain  is  stored  in  bulk,  and  in  which  the  grain  of  differ- 
ent owners  is  mixed  togather.  Public  warehouses  of  Class  C 
shall  embrace  all  other  warehouses  or  places  where  property 
of  any  kind  is  stored  for  a  consideration.     Id.  sec.  5362. 

License : 

The  proprietor,  lessee  or  manager  of  any  public  warehouse 
shall  be  required  before  transacting  any  business  in  such  ware- 
house, to  procure  from  the  board  of  transportation  a  license 
permitting  such  proprietor,  lessee  or  manager  to  transact  busi- 
ness as  a  public  warehouseman  under  the  laws  of  this  state, 
which  license  shall  be  issued  by  the  board  of  transportation 
upon  a  written  application  which  shall  set  forth  the  location 
and  name  of  such  warehouse,  and  the  individual  name  of  each 
person  interested  as  owner  or  principal  in  the  management  of 
the  same;  or,  if  the  warehouse  be  owned  or  managed  by  a  cor- 
poration, the  name  of  the  president,  secretary  and  treasurer  of 


NEBRASKA.  511 

such  corporation  shall  be  stated,  and  the  said  licease  shall  give 
authority  to  carry  on  and  conduct  the  business  of  a  public  ware- 
house in  accordance  with  the  laws  of  tliis  state  and  siiall  be 
revocable  by  the  said  board  of  transportation  ujjon  complaint 
of  any  person  in  writing,  setting  forth  the  particular  violation 
of  law,  and  upon  satisfactory  proof,  to  be  taken  in  such  manner 
as  may  bo  directed  by  the  said  board  of  transportation.  Id. 
sec.  5363. 

Bond : 

The  person  receiving  a  license  as  herein  provided  shall  tile  with 
the  said  board  of  transportation  a  bond  to  the  people  of  the 
said  state  of  Nebraska,  with  good  and  sufficient  security,  to  be 
approved  by  said  board  of  transportation,  in  the  penal  sum  of 
ten  thousand  dollars  (.$10,000),  conditioned  for  the  faithful  per- 
formance of  his  duty  as  public  warehouseman,  and  his  full  and 
unreserved  compliance  with  all  laws  of  this  state  in  relation 
thereto.     Id.  sec.  5364. 

Penalty  for  doing  business  without  a  license : 

Any  person  who  shall  transact  the  business  of  a  public  ware- 
house without  first  procuring  a  license  as  herein  provided,  or 
who  shall  continue  to  transact  any  such  business  after  such 
license  has  been  revoked  (save  only  that  he  may  be  permitted 
to  deliver  property  previously  stored  in  such  warehouse)  shall 
on  conviction  be  fined  in  a  sum  not  less  than  one  hundred  dol- 
lars ($100)  nor  more  than  five  hundred  dollars  ($500)  for  each 
and  every  day  such  business  is  carried  on,  and  the  said  board 
of  transportation  may  refuse  to  renew  any  license  or  to  grant 
a  new  one  to  any  of  the  persons  whose  license  has  been  revoked 
within  one  year  from  the  time  it  was  revoked.     Id.  sec.  5365. 

Not  to  discriminate — Not  to  mix  grain — Receipts : 

It  shall  be  the  duty  of  any  warehouseman  of  Classes  A  and  B 
to  receive  for  storage  or  shipment  any  grain  that  may  be  ten- 
dered to  him  in  the  usual  manner  in  which  wan^houses  are  ac- 
customed to  receive  the  same  in  the  ordinary  and  usual  course 
of  business,  not  making  any  discrimination  between  jiersons 
desiring  to  avail  themselves  of  warehouse  facilities,  and  in  the 


612  NEBRASKA    LAWS. 

case  of  every  warehouseman  of  Class  A  such  grain  in  all  cases 
shall  be  inspected  and  guarded  by  a  duly  authorized  inspector, 
and  stored  with  grain  of  a  similar  grade  received  at  the  same 
time  as  near  as  may  be.  In  no  case  shall  grain  of  different 
grades  be  mixed  together  in  warehouses  of  Class  A  while  in 
store,  but  if  the  owner  or  consignee  so  requests  and  the  ware- 
houseman consent  thereto,  his  grain  of  the  same  grade  may  be 
kept  in  a  bin  by  itself  apart  from  that  of  the  owners,  which  bin 
shall  thereupon  be  marked  and  known  as  a  "separate  bin." 
If  a  warehouse  receipt  be  issued  for  grain  so  kept  separate,  it 
shall  state  on  its  face  that  it  is  in  a  separate  bin,  and  shall  state 
the  number  of  such  bin,  and  no  grain  shall  he  delivered  from 
such  warehouse  of  Class  A  unless  it  be  inspected  on  the  delivery 
thereof  by  a  duly  tiuthorized  inspector  of  grain.  Nothing  in 
this  section  shall  be  so  construed  as  to  require  the  receipt  of 
grain  into  any  warehouse  in  which  there  is  not  sufficient  room 
to  accommodate  or  store  it  properly,  or  in  cases  where  such 
warehouses  are  necessarily  closed.     Id.  sec.  5366. 

Manner  of  issuing  receipts — Class  A  : 

Upon  application  of  the  owner  or  consignee  of  grain  stored 
in  a  public  warehouse  of  Class  A,  the  same  being  accompanied 
with  evidence  that  all  transportation  or  other  charges  which 
may  be  a  lien  upon  such  grain,  including  charges  for  inspection 
have  been  paid,  the  warehousemen  shall  issue  to  the  person 
entitled  thereto  a  warehouse  receipt  therefor,  subject  to  the 
order  of  the  owner  or  consignee,  which  receijjt  shall  bear  date 
corresponding  with  the  receipt  of  the  grain  into  store,  and  shall 
state  upon  its  face  the  quantity  and  inspected  grade  of  the  grain, 
and  that  the  grain  mentioned  in  it  has  been  received  into  store, 
to  be  stored  with  gi'ain  of  the  same  grade  by  inspection,  re- 
ceived at  about  the  date  of  the  receipt,  and  that  it  is  deliverable 
upon  the  return  of  the  receipt,  proi^erly  indorsed  by  the  person 
to  whose  order  it  was  issued  and  the  payment  of  proper  charges 
for  storage.  All  warehouse  receipts  for  grain  issued  from  the 
same  warehouse  shall  be  consecutively  numbered,  and  no  two 
receipts  bearing  the  same  number  shall  be  issued  from  the  same 
warehouse  during  any  one  year  exce])t  in  the  case  of  a  lost  or 
destroyed  receipt,  in  which  case  the  new  receipt  shall  bear  the 


NEBRASKA.  613 

same  date  and  number  us  the  original  and  shall  be  plainly 
marked  on  its  face  "duplicate."  If  the  grain  was  received 
from  railroad  cars  the  number  of  each  cai-  shall  be  stated  upon 
the  receipt  with  the  amount  it  oontaiiicd;  if  from  canal-boat, 
barge  or  other  vessel  the  name  and  mimber  of  such  craft;  if 
from  teams  or  by  other  means  the  manner  of  its  receipt  shall 
be  stated  on  its  face.  The  number  of  the  bin  shall  also  be 
written  on  the  face  of  the  receipt  when  desired  by  the  owner 
or  consignee.     Id.  sec.  5367. 

Cancelling  receipts : 

Upon  the  delivery  of  grain  or  other  property  from  store,  upon 
any  receipt,  such  receipt  shall  be  plainly  marked  across  its  face 
with  the  word  "cancelled,"  with  the  name  of  the  person  can- 
celling the  same,  and  shall  thereafter  be  void,  and  shall  not 
again  be  put  in  circulation,  nor  shall  grain  or  other  property  be 
delivered  twice  upon  the  same  receipt.     Id.  sec.  5368. 

Further,  of  issuing  and  cancelling  receipts : 

No  warehouse  receipt  shall  he  issued  except  upon  the  actual 
delivery  of  grain  or  other  proj^erty  into  store  in  the  warehouse 
from  which  it  purports  to  be  issued  and  which  is  to  be  repre- 
sented by  the  receipt,  nor  shall  any  receipt  be  issued  for  a  greater 
quantity  of  grain  or  other  property  than  was  contained  in  the 
lot  or  parcel  stated  to  have  been  received,  nor  shall  more  than 
one  receipt  be  issued  for  the  same  lot  of  grain  or  other  jjroperty 
except  in  cases  where  receipts  for  a  part  of  a  lot  are  desired,  and 
then  the  aggregate  receipts  for  a  ]:)articular  lot  shall  cover  that 
lot  and  no  more.  In  cases  where  a  part  of  the  grain  or  other 
property  represented  by  the  receipt  is  delivered  out  of  store  and 
the  remainder  is  left,  a  new  receipt  may  be  issued  for  such  re- 
mainder, but  such  new  receipt  shall  bear  the  same  date  as  the 
original,  and  shall  state  on  its  face  that  it  is  balance  of  receipt 
of  the  original  number,  and  the  receipt  upon  which  a  part  has 
been  delivered  shall  be  cancelled  in  the  same  manner  as  if  it  harl 
all  been  delivered.  In  case  it  be  desirable  to  divide  one  receipt 
into  two  or  more,  or  in  case  it  be  desirable  to  consoliflate  two 
or  more  receipts  into  one,  and  the  warehouseman  con.sent 
thereto,  the  original  receipt  shall  be  cancelled  the  same  as  if 


514  NEBRASKA    LAWS. 

the  grain  or  other  property  had  been  delivered  from  store,  and 
the  new  receipts  shall  express  on  their  face  that  they  are  parts 
of  other  receipts  or  a  consolidation  of  other  receipts,  as  the  case 
may  be,  and  the  number  of  the  original  receipts  shall  also  ap- 
pear upon  the  new  ones  issued  as  explanatory  of  the  change, 
but  no  consolidation  of  receipts  of  dates  differing  more  than 
ten  days  shall  be  permitted,  and  all  new  receipts  issued  for  old 
ones  cancelled  as  herein  provided,  shall  bear  the  same  dates  as 
those  originally  issued  as  near  as  may  be.     Id.  sec.  5369. 

Warehouse  not  to  limit  liability  : 

No  warehouseman  in  this  state  shall  insert  in  any  receipt 
issued  by  him  any  language  in  anywise  limiting  or  modifying 
his  liabilities  or  responsibilities  as  imposed  by  the  laws  of  this 
state.     Id.  sec.  5370. 

Delivery  of  property : 

On  the  return  of  any  warehouse  receipt  issued  by  him  prop- 
erly indorsed  and  the  tender  of  all  proper  charges  upon  the 
property  represented  by  it,  such  property  shall  be  delivered  to 
the  holder  of  such  receipt  in  the  order  demanded  and  as  rapidly 
as  due  diligence,  care  and  prudence  will  justify.  Unless  the 
property  represented  by  such  receipt  shall  be  promptly  deliv- 
ered as  above,  after  such  demand  shall  have  been  made,  the 
warehouseman  in  default  shall  be  liable  to  the  owner  of  such 
receipt  for  damages  for  such  default  ten  per  cent  of  the  value 
of  the  property  at  the  time  of  the  demand,  and  in  addition  thereto 
one  per  cent  of  the  value  of  the  property  for  each  and  every  day 
of  such  neglect  or  refusal  to  deliver.     Id.  sec.  5371. 

Posting  grain  in  store — Statements  to  registrar — Daily 
publication — Cancelled  receipts — Class  A  : 

The  warehouseman  of  every  public  warehouse  of  Class  A  shall 
on  or  before  Tuesday  morning  of  each  week  cause  to  be  made 
out  and  shall  keep  posted  in  the  business  office  of  his  ware- 
house, in  a  conspicuous  place,  a  statement  of  the  amount  of 
each  kind  and  grade  of  grain  in  store  in  his  warehouse  at  the 
close  of  business  on  the  previous  Saturday,  and  shall  also  on 
each  Tuesday  morning  render  a  similar  statement  made  under 


NEBRASKA.  516 

oath  before  some  officer  authorized  by  law  to  administer  oaths, 
by  one  of  the  princii)al  owners  or  operators  thereof  or  by  the 
bookkeeper  thereof  having  personal  knowledge  of  the  facts  to 
the  warehouse  registrar  appointed  as  hereinafter  provided. 
They  shall  also  be  required  to  furnish  daily  to  the  same  registrar 
a  correct  statement  of  the  amount  of  each  kind  and  grade  of 
grain  received  in  store  in  such  warehouse  on  the  previous  day; 
also  the  amount  of  each  kind  and  grade  of  grain  delivered  or 
shipped  by  such  warehouseman  during  the  previous  d.iy  and 
what  warehouse  receipts  have  been  cancelled  upon  which  the 
grain  has  been  delivered  on  such  day,  giving  the  number  of  each 
receipt  and  amount,  kind  and  grade  of  grain  received  and 
shipped  upon  each;  also  how  much  grain,  if  any,  was  so  delivered 
or  shipped  and  the  kind  and  grade  of  it,  for  which  warehouse 
receipts  had  not  been  issued  and  when  and  how  much  unre- 
ceipted grain  was  received  by  them,  the  aggregate  of  such  re- 
ported cancellations  and  delivery  of  unreceipted  grain  corre- 
sponding in  amount,  kind  and  grade  with  the  amount  so  reported 
delivered  or  shipped.  They  shall  also  at  the  same  time  report 
what  receipts,  if  an}^,  have  been  cancelled  and  new  ones  issued 
in  their  stead,  as  herein  provided  for.  And  the  warehouseman 
making  such  statements  shall  in  addition  furnish  the  said  reg- 
istrar any  further  information  regarding  receipts  issued  or 
cancelled  that  may  be  necessary  to  enable  him  to  keep  a  full 
and  correct  record  of  all  receipts  issued  and  cancelled  and  of 
grain  received  and  delivered.     Id.  sec.  5372. 

Chief  inspector  : 

It  shall  be  the  duty  of  the  governor  to  appoint  by  and  with 
the  advice  and  consent  of  the  senate,  a  suitable  person,  who 
shall  not  be  a  member  of  any  board  of  trade,  and  who  shall  not 
be  interested  directly  or  indirectly  in  any  warehouse  in  this  state, 
a  chief  inspector  of  grain,  who  shall  hold  his  oflice  for  th(>  term 
of  two  years,  unless  sooner  removed  as  hereinafter  provided  for. 
in  every  city  or  county  in  which  is  located  a  warehou.se  of 
Class  A  or  B,  provided  that  no  such  grain  inspector  for  cities 
or  counties  in  which  are  located  warehouses  of  Class  B  shall  be 
appointed,  except  upon  the  ajiplication  and  petition  of  two  or 
more  warehouses  of  Class  B  doing  business  in  such  city  or  county, 


ol6  NEBRASKA    LAWS. 

and  when  there  shall  be  a  legally  organized  board  of  trade  in 
such  cities  or  counties  such  application  and  petition  shall  be 
officially  indorsed  by  such  board  of  trade  before  such  applica- 
tion and  petition  shall  bo  granted.     Id.  sec.  5373. 

His  duties : 

It  shall  be  the  duty  of  such  chief  inspector  of  grain  to  have 
a  general  supei'\'ision  of  the  inspection  of  grain  as  required  by 
this  act  or  the  laws  of  this  state,  under  the  advice  and  imme- 
diate direction  of  the  board  of  transportation.     Id.  sec.  5374. 

Assistant  inspectors  : 

The  said  chief  inspector  shall  be  authorized  to  nominate  to 
the  said  board  of  transportation  such  suitable  persons,  in  suffi- 
cient number,  as  may  be  deemed  qualified  for  assistant  inspect- 
ors, who  shall  not  be  members  of  any  board  of  trade  nor  inter- 
ested in  any  warehouse,  and  also  such  other  employees  as  may 
be  necessary  to  properly  conduct  the  business  of  his  office,  and 
the  board  of  transportation  is  authorized  to  make  such  ap- 
pointments.    Id.  sec.  5375. 

Chief  inspector's  oath  and  bond  : 

The  cliief  inspector  shall,  upon  entering  the  duties  of  his 
office,  be  required  to  take  an  oath,  as  in  case  of  other  officers, 
and  he  shall  execute  a  bond  to  the  people  of  the  state  of  Ne- 
braska in  the  penal  sum  of  fifty  thousand  (50,000)  dollars  when 
appointed  for  any  city  in  which  is  located  a  warehouse  of  Class  A 
and  ten  thousand  (10,000)  dollars  when  appointed  for  any  other 
city  or  county,  with  sureties  to  be  approved  by  the  board  of 
transportation,  with  a  condition  therein  that  he  will  faithfully 
and  strictly  discharge  the  duties  of  his  said  office  of  inspector 
according  to  law  and  the  rules  and  regulations  prescribing  his 
duties,  and  that  he  will  pay  all  damages  to  any  person  or  per- 
sons who  may  be  injured  by  his  neglect,  refusal  or  failure  to 
comply  with  law  and  the  rules  and  regulations  aforesaid.  Id. 
sec.  5376. 

Assistant  inspector's  oath  and  bond  : 

And  each  assistant  inspector  shall  take  a  like  oath,  execute  a 
bond  in  the  penal  sum  of  five  thousand  (5,000)  dollars  with  like 


NEBitA.SKA.  517 

conditions  and  to  hv  approved  in  like  manner  as  is  i)n)vid('d  in 
case  of  the  chief  inspectoi',  which  said  several  bonds  shall  he 
filed  in  the  office  of  said  hoard  of  lraiis|)()rtatioii,  and  suit  may 
be  brought  upon  said  bond  or  bonds  in  any  court  iiaving  juris- 
diction thereof,  in  the  county  where  the  plaintiff  or  (Uifendant 
resides,  for  the  use  of  the  person  or  persons  injured.'  Id.  sec. 
5377. 

Rules  for  inspection  cluirf^es  : 

The  chief  inspector  of  grain  and  all  assistant  inspectors  of 
grain  and  other  employees  in  connection  thei-ewith  shall  be  gov- 
erned in  their  respective  duti(>s  by  .such  rules  and  regulations 
as  may  be  prescribed  by  said  board  of  transj^ortation,  and  the 
said  board  of  transportation  shall  have  full  power  to  make  all 
rules  and  regulations  for  the  inspection  of  grain,  and  shall  also 
have  power  to  fix  the  rate  of  charges  for  the  inspection  of  grain, 
and  the  manner  in  which  the  same  shall  be  collected,  which 
charges  shall  be  regulated  in  such  a  manner  as  will  in  the  judg- 
ment of  the  said  board  of  transportation  produce  sufficient 
revenue  to  meet  the  necessary  expenses  of  the  service  of  inspec- 
tion and  no  more.     Id.  sec.  5378. 

Pay  of  inspectors  .and  .assistants  : 

It  shall  be  the  duty  of  the  said  board  of  transportation  to  fix  the 
amount  of  the  compensation  to  be  paid  to  the  chief  inspector, 
assistant  inspectors  and  all  other  persons  employed  in  the  in- 
spection service,  and  prescribe  the  time  and  manner  of  their 
payment.     Id.  sec.  5379. 

Appointment  of  registrar  and  assistants  : 

The  said  board  of  transportation  are  hereby  authorized  to 
appoint  a  suitable  person  as  warehouse  registrar  and  such  as- 
sistants as  may  be  deemed  necessary  to  jierfoi-m  the  duti(^s 
imposed  upon  such  registrar  by  the  provisions  of  this  act.  Id. 
sec.  5380. 

General  supervision,  pay,  etc.  : 

The  said   board  of  transportation  shall  have  and  exercise  a 

general   supervision   and   control   of  such  appointments,   shall 

prescribe  their  respective  duties,  .shall  Hx  the  amount  of  their 


ol8  NEBRASKA    l-AWS. 

compensation  and  the  time  and  manner  of  its  payment.     Id. 
sec.  5381. 

Removal  from  office : 

Upon  the  comi3laint  in  writing  of  any  person  to  the  said 
board  of  'transportation,  supported  by  reasonable  and  satis- 
factory proof,  that  any  person  appointed  or  employed  under 
the  provisions  of  this  section  has  violated  any  of  the  rules  pre- 
scribed for  his  government,  has  been  guilty  of  an  improper  act 
or  has  been  fount!  insufficient  or  incompetent  for  the  duties  of 
his  position,  such  person  shall  be  immediately  removed  from 
Ms  office  or  employment  by  the  same  authority  that  appointed 
him  and  his  place  shall  be  filled  if  necessary,  by  a  new  appoint- 
ment ,  or  in  case  it  shall  be  deemed  necessary  to  reduce  the  num- 
ber of  persons  so  appointed  or  employed,  their  term  of  service 
shall  cease  under  the  orders  of  the  same  authority  by  which 
they  were  appointed  or  employed.     Id.  sec.  5382. 

Expenses — How  paid  : 

All  necessary  expenses  incident  to  the  inspection  of  grain  and 
to  the  office  of  registrar  economically  administered,  including 
the  rent  of  suitable  offices,  shall  be  deemed  expenses  of  the  in- 
spection service,  and  shidl  l)e  included  in  the  estimate  of  ex- 
penses of  such  inspection  service,  and  shall  be  paid  from  the 
funds  collected  for  the  same.     Id.  sec.  5383. 

Rates  of  storage : 

Every  warehouseman  of  public  warehouses  of  Class  A  shall  be 
required  during  the  first  week  in  January  of  each  year  to  pub- 
lish in  one  or  more  of  the  newspapers,  daily,  if  there  be  such 
published  in  the  city  in  wliich  warehouse  is  situated,  a  table  or 
schedule  of  rates  for  the  storage  of  grain  in  his  warehouse  dur- 
ing the  ensuing  year,  which  shall  not  be  increased,  except  as  is 
hereinafter  provided  during  the  year,  and  such  pu})lished  rates, 
or  any  pu])lislied  reduction  of  them  shall  aj^ply  to  all  grain  re- 
ceived into  sucli  warehouse  from  any  person  or  source,  and  no 
discrimination  shall  be  made  directly  or  indirectly  for  or  against 
any  charges  made  by  such  warehouseman  for  the  storage  of 
grain.     The  maxinmm  charge  for  storage  and  handling  of  grain, 


NEBRASKA.  ")1<J 

including   the  cost  of  receiving  and  delivering,  shall  be  for  the 
first  ten  days  or  part  thereof.     Id.  sec.  53S4.    (See  note. ) 

All  grain  shall  be  weighed  on  i-eceipt  and  dclixcrv  from  the 
jniblic  warehouse  of  Class  A  and  H,  and  annually  on  the  date 
prescribed  by  the  board  of  transportation  all  grain  in  bulk 
stored  in  said  public  warehouse  shall  be  weighed  according  to 
its  kind  and  grade  and  reported  to  the  register.     Id.  sec.  5.'iS,5. 

Loss  by  lire — Heating — Order  of  delivery — Grain  out  of 
condition : 

No  public  warehouseman  shall  be  held  responsible  for  any 
loss  or  damage  to  property  by  fire  while  in  his  custody,  jjrovided 
reasonable  care  and  vigilance  be  exei'cised  to  i)rotect  and  pre- 
serve the  same,  nor  shall  he  be  held  lial)le  for  damage  to  grain 
by  heating  if  it  can  be  shown  that  he  has  exercised  proper  care 
in  handling  and  storing  the  same,  and  that  such  heating  or  dam- 
age was  the  result  of  causes  beyond  his  control,  and  in  order  that 
no  injustice  may  result  to  the  hokler  of  grain  in  any  pui)]ic  ware- 
house of  Classes  A  and  B  it  shall  be  deemed  the  duty  of  such 
warehouseman  to  dispose  of  by  delivery  or  shipping  in  the  or- 
dinary and  legal  manner  of  so  delivering  that  grain  of  any  partic- 
ular grade  which  was  first  received  by  them  or  which  has  been 
the  longest  time  in  store  in  his  warehouse,  and  unless  ])ublic 
notice  has  been  given  that  some  portion  of  the  grain  in  his  ware- 
house is  out  of  condition  or  becoming  so,  such  warehouseman 
shall  deliver  grain  of  (juality  equal  to  that  received  by  him  on 
all  receipts  as  presented.  In  case,  liowever,  any  warehouse- 
man of  Classes  A  and  B  shall  discover  that  any  portion  of  the 
grain  in  his  warehouse  is  out  of  condition  or  becoming  so,  and 
it  is  not  in  his  power  to  preserve  the  same,  he  shall  immediately 
give  public  notice  by  advertisement  in  a  daily  newsi)a}X'r  in  w  hich 
warehouse  is  situated  [so  in  act]  and  l)y  posting  a  notice  in  the 
most  public  place  for  such  a  i)urpose  in  such  city,  of  its  actual 
condition  as  near  as  he  can  ascertain  it,  shall  state  in  such  notice 
the  kind  and  grade  of  the  grain  and  the  bins  in  wliicli  it  is 
stored,  and  shall  also  state  in  such  notice  the  receipts  (Hitsiand- 
ing  upon  which  such  grain  will  be  delivered,  giving  the  imm- 

NoTE.  This  is  the  exact  readins:  of  this  section  as  passed  bj'  the  Nebraska 
iepislature 


520  XEBKASKA    LAWS. 

bers,  amounts  and  dates  of  each,  which  receipts  shall  be  those 
of  the  oldest  dates  then  in  circulation  or  uncancelled,  the  grain 
represented  by  which  has  not  previousl}^  been  declared  or  re- 
ceipted for  as  out  of  condition,  or  if  the  grain  longest  in  store 
has  not  been  receipted  for  he  shall  so  state  and  shall  give  the 
name  of  the  party  for  whom  such  grain  was  stored,  the  date  it 
was  received  and  the  amount  of  it  and  the  enumeration  of  re- 
ceipts and  identification  of  grain  so  discredited  shall  embrace, 
as  near  as  may  be,  as  great  a  quantity  of  grain  as  is  contained 
in  such  bins,  and  such  grain  shall  be  delivered  upon  the  return 
and  cancellation  of  the  receipts  and  the  unreceipted  grain  upon 
the  request  of  the  owner  or  person  in  charge  thereof.  Nothing 
herein  contained  shall  be  held  to  relieve  the  said  warehouseman 
from  exercising  proj^er  care  and  vigilance  in  preserving  such 
grain  after  publication  of  its  condition,  but  such  grain  shall 
be  kept  separate  and  apart  from  all  direct  contact  with  other 
grains  and  shall  not  be  nuxed  with  other  grain  while  in 
store  in  such  warehouse.  Any  warehouseman  guilty  of  any 
act  or  neglect,  the  effect  of  which  is  to  depreciate  property 
stoi'ed  in  the  warehouse  undei'  his  control,  shall  be  held 
resp()nsil)le  as  at  common  law,  or  upon  the  bond  of  such 
warehouseman,  and  in  addition  thereto  the  license  of  such  ware- 
houseman shall  be  revoked.  Nothing  in  this  section  shall  be 
so  construed  as  to  permit  any  warehouseman  to  deliver  any 
grain  stored  in  a  special  bin  or  by  itself,  as  provided  in  this  act, 
to  any  but  the  owner  of  the  lot,  whether  the  same  be  repre- 
sented by  a  warehouse  receipt  or  otherwise.  In  case  the  grain 
tleclared  out  of  condition,  as  herein  provided  for,  shall  not  be 
removed  from  store  by  the  owner  thereof  within  one  month 
from  the  date  of  the  notice  of  its  being  out  of  condition,  it  shall 
1)('  l:i\\ful  for  the  warehouseman  where  the  grain  is  stored  to 
sell  the  same  at  public  auction  for  the  account  of  said  owner  by 
giving  ten  days'  notice  by  advertisement  in  a  daily  newspaper, 
if  there  be  such  published  in  the  city  or  town  where  such  ware- 
house is  located.     Id.  sec.  5386. 

Tainperiui?  with  stoi-ed  grain — Private  business — Drying 
— Cleaning— Moving  : 

It  shall  not  be  lawful  foi'  any  ]iublic  warehouseman  to  mix 


N  KB  R  ASK  A.  521 

any    grain  of  different  grades  together  or  to  select  cliiTerent 
qualities  of  the  same  grade  for  the  purpose  of  storing  or  deliv- 
ering the  same,  nor  shall  he  attempt  to  deliver  grain  of  one 
grade  for  another,  or  in  any  way  tamper  with  grain  while  in  his 
possession  or  custody,  with  a  view  of  secui-ing  any  profit  to  him- 
self or  any  other  person,  and  in  no  case  even  of  grain  stored  in  a 
separate  bin,  shall  he  be  permitted  to  mix  grain  of  different 
grades  together  while  in  store.     He  may,  however,  on  re(,uest 
of  the  owner  of  any  grain  stored  in  a  private  bin,  be  permitted 
to  dry,  clean,  or  otherwise  improve  the  condition  or  vahie  of 
any  such  lot  of  grain,  but  in  such  case  it  shall  only  be  delivered 
as  such  separate  lot  or  as  the  grade  it  was  originally  when  re- 
ceived by  him,  without  reference  to  the  grade  it  may  be  as  im- 
proved by  such  process  of  drying  or  cleaning.     Nothing  in  this 
section,  however,  shall  prevent  any  warehouseman  from   mov- 
ing grain  while  within  his  warehouse  for  its  preservation  or  safe- 
keeping.    Id.  sec.  5387. 

Examiuatioii  of  grain  and  scales— Incorrect  scales  : 

All  persons  owning  property  or  who  may  be  interested  in  the 
same  in  any  public  warehouse  and  all  duly  authorized  inspectors 
of  such  property  shall  at  all  times  during  ordinary  business  hours 
be  at  full  liberty  to  examine  any  and  all  property  stored  in  any 
public  warehouse  in  this  state,  and  all  proper  facilities  shall  be 
extended  to  such  person  by  the  warehouseman,  his  agent  and 
his  servants  for  an  examination,  and  all  jjarts  of  public  ware- 
houses shall  be  free  for  the  inspection  and  examination  of  any 
person  interested  in  property  stored  therein,  or  of  any  author- 
ized inspector  of  such  property;  and  all  scales  used  foi-  the 
weighing  of  property  in  public  warehouses  shall  be  subject  to 
examination  and  test  by  any  duly  authorized  inspector  or  sealer 
of  weights  and  measures  at  any  time  when  required  by  anv 
person  or  persons,  agents  or  agents,  whose  property  has  been 
or  is  to  be  weighed  on  such  scales,  the  expense  of  such  tests  by 
an  inspector  or  sealer  to  be  paid  by  the  warehouse  j:»roprietor  if 
the  scales  are  found  incorrect,  but  not  otherwise.     Any  ware- 
houseman who  may  be  guilty  of  continuing  to  use  scales  found 
to  be  in  an  imperfect  or  incorrect  condition,  by  such  examina- 
tion and  test,  until  the  same  shall  have  been  pronounced  cor- 


522  NEBRASKA    LAWS. 

rect  and  properly  sealed,  shall  be  liable  to  be  proceeded  against 
as  hereinafter  provided.     Id.  sec.  5388. 

Grain  must  be  inspected : 

In  all  places  where  there  is  legally  appointed  an  inspector  of 
grain,  no  proprietor  or  manager  of  a  public  warehouse  of  Class  A 
and  B  shall  be  permitted  to  receive  any  grain  and  mix  the  same 
with  the  grain  of  other  owners  in  the  storage  thereof  until  the 
same  shall  have  been  inspected  and  graded  by  said  inspector. 
Id.  sec.  5389. 

Bogus  inspector — Penalty  : 

Any  person  who  shall  assume  to  act  as  an  inspector  of  grain 
who  has  not  been  legally  appointed  and  sworn,  shall  be  held  to 
be  an  imposter,  and  shall  l)e  punished  by  a  tine  of  not  less  than 
one  hundred  (100)  dollars  nor  more  than  two  hundred  (200) 
dollars  for  each  and  every  attempt  to  so  inspect  grain  to  be  re- 
covered before  a  justice  of  the  peace.     Id.  sec.  5390. 

Misconduct  of  inspector — Influencing — Penalty  : 

Any  duly  authorized  inspector  of  grain  who  shall  be  guilty  of 
neglect  of  duty,  or  who  shall  knowingly  or  carelessly  inspect  or 
grade  any  grain  improperly,  or  who  shall  accept  any  money  or 
other  consideration,  directly  or  indirectly,  for  any  neglect  of 
duty  as  such  inspector  of  grain  and  any  person  who  shall  im- 
properly influence  any  inspector  of  grain  in  the  performance  of 
his  duties  as  such  inspector,  shall  be  deemed  guilty  of  a  misde- 
meanor and  on  conviction  shall  be  fined  in  a  sum  not  less  than 
one  hundred  dollars  (SlOO)  nor  more  than  one  thousand  dol- 
lars ($1,000)  in  the  discretion  of  the  court,  or  shall  be  impris- 
oned in  the  county  jail  not  less  than  three  nor  more  than  twelve 
months,  or  both,  in  the  discretion  of  the  court.     Id.  sec.  5391. 

Owner,  etc.,  dissatisfied  with  inspection — His  rights— De- 
livery on  track : 

In  case  any  owner  or  consignee  of  grain  shall  be  dissatisfied 
with  the  inspection  of  any  lot  of  grain,  or  shall  from  any  cause 
desire  to  receive  his  property  without  its  passing  into  store,  he 
shall  be  at  liberty  to  have  the  same  withhold  from  going  into  any 
pul)lic   warehouse  (whether   the   property  may  have  been  pre- 


NEBRASKA.  5^y 

viously  consigned  to  such  warehouse  or  not),  by  giving  notice  to 
the  person  or  corporation  in  whose  possession  it  nuiy  be  nt  th(! 
time  of  giving  such  notice,  and  such  grain  shall  be  witiilield  from 
going  into  store  and  be  delivered  to  him,  subject  only  to  such 
proper  charges  as  may  be  a  lien  upon  it  prior  to  such  notice. 
The  grain,  if  in  railroad  cars  to  be  removcnl  therefrom  by  such 
owner  or  consignee  within  twenty-four  hours  after  such  notice 
has  been  given  to  the  railroad  company  having  it  in  possession, 
provided,  such  railroad  company  place  the  same  in  a  projx'r  and 
convenient  place  for  unloading,  and  any  person  or  corporation 
refusing  to  allow  such  owner  or  consigncn^  to  so  receive  his  grain 
or  other  property  in  carloads  shall  be  deemed  guilty  of  conver- 
sion and  shall  be  lial)le  to  pay  such  owner  or  consignee,  double 
the  value  of  the  property  so  converted.  Notice  that  such  grain 
or  other  property  is  not  to  be  delivered  into  store  may  also  be 
given  to  the  proprietor  or  manager  of  any  warehouse  into  which 
it  would  otherwise  have  been  delivered,  and  if  after  such  notice 
it  be  taken  into  store  in  such  warehouse,  the  proprietor  or  man- 
ager of  such  warehouse  shall  be  liable  to  the  owner  for  double 
its  market  value.     Id.  sec.  5392. 

Combination  : 

It  shall  be  unlaw^ful  for  any  proprietor,  lessee  or  manager  of 
any  public  warehouse  to  enter  into  any  contract,  agreement, 
understanding  or  combination  with  any  railroad  company  or 
other  corporation,  or  with  any  individual  or  individuals,  by 
which  the  property  of  any  person  is  to  be  deliveriHl  to  any  pub- 
lic warehouse  for  storage  or  any  other  jnu-pose  contrary  to  the 
direction  of  the  owner,  his  agent  or  consignee.  Any  A'iolation 
of  this  section  shall  subject  the  offender  to  be  proceeded  against 
as  provided  in  the  next  section  of  this  act.     Id.  sec.  5393. 

Suits — Against  warolioiisenian  : 

If  any  warehouseman  shall  be  deemed  guilty  of  a  violation 
of  any  of  the  provisions  of  this  act  it  shall  be  lawful  for  any  per- 
son injured  by  such  violation  to  bring  suit  in  any  court  of  com- 
petent jurisdiction  upon  the  bond  of  such  warehouseman  in  the 
name  of  the  people  of  the  state  of  Nebraska  to  the  u.<?e  of  such 
person.     In  all  criminal  prosecutions  against  a  warehouseman 


524  NEBRASKA    LAWS. 

for  the  violation  of  any  of  the  provisions  of  this  act  it  shall  be 
the  duty  of  the  prosecuting  attorney  of  the  county  in  which 
said  prosecution  is  brought  to  prosecute  the  same  to  a  final 
issue,  in  the  name  of  and  on  behalf  of  the  people  of  the  state  of 
Nebraska.     Id.  sec.  5394. 

Warehouse  receipts  negotiable : 

Warehouse  receipts  for  property  stored  in  any  class  of  public 
warehouses  as  herein  described  shall  be  transferable  by  the  in- 
dorsement of  the  party  to  whose  order  such  receipt  may  be 
issued,  and  such  indorsement  shall  be  deemed  a  valid  transfer 
of  the  property  represented  by  such  receipt,  and  may  be  made 
either  in  blank  or  to  the  order  of  another.  All  warehouse  re- 
ceipts for  property  stored  in  public  warehouses  of  Class  C  shall 
distinctly  state  on  their  face  the  brand  or  distinguishing  marks 
upon  such  property.     Id.  sec.  5395. 

False  receipts — Fraudulent  removal — Penalty : 

Any  warehouseman  of  any  public  warehouse  w^ho  shall  be 
guilty  of  issuing  any  w^arehouse  receipt  for  any  property  not 
actually  in  store  at  the  time  of  issuing  such  receipt,  or  who  shall 
be  guilty  of  issuing  any  warehouse  receipt  in  any  respect  fraudu- 
lent in  its  character,  either  as  to  its  date  or  the  quantity,  qual- 
ity or  inspected  grade  of  such  property,  or  who  shall  remove 
any  property  from  store  except  to  preserve  it  from  fire  or  other 
sudden  danger,  without  the  return  and  cancellation  of  any  and 
all  outstanding  receipts  that  may  have  been  issued  to  represent 
such  property,  shall,  when  convicted  thereof,  be  deemed  guilty 
of  a  crime,  and  shall  suffer,  in  addition  to  any  other  penalties 
prescribed  by  this  act,  imprisonment  in  the  penitentiary  for  not 
less  than  one  and  not  more  than  ten  years.     Id.  sec.  5396. 

Common-Law   remedy   saved : 

Nothing  in  this  act  shall  deprive  any  person  of  any  common- 
law  remedy  now  existing.     Id.  sec.  5397. 

Printed  copy  of  act  posted  : 

All  proprietors  and  managers  of  public  warehouses  shall  keep 
posted  up  at  all  times  in  a  conspicuous  place  in  their  business 


NEBKASKA.  525 

offic^es  and  in  each  of  their  warehouses  a  printed  copy  (jf  this 
act.     Id.  sec.  5398. 

Duty  of  board  of  transportation— Enforceiiieiit  of  act : 

It  shall  be  the  duty  of  the  board  of  transportation  to  see  that 
the  provisions  of  this  act  are  duly  enforctnl.     Id.  sec.  5399. 

Defining  additional  duties  of  the  board  of  transportation 
in  counties  with  public  warehouses — Additional  duties  of  the 
board  of  transportation : 

In  addition  to  their  present  duties  the  board  of  transporta- 
tion shall  examine  into  the  condition  and  management  and  all 
other  matters  concernin*]:;  the  business  of  public  warehouses  in 
this  state,  so  far  as  the  same  })ertain  to  the  relation  of  sucli  ware- 
houses to  the  public  and  to  the  acconnnodation  and  security  of 
persons  doing  business  therewith,  and  whether  such  warehouses, 
their  ofhcers,  (Urectors,  managers,  lessees,  agents  and  em- 
ployees comply  with  the  laws  of  this  state  now  in  force  or  which 
shall  hereafter  be  in  force  concerning  them.  And  whenever  it 
shall  come  to  their  knowledge,  either  upon  com]:)laint  or  other- 
wise, or  they  shall  have  reason  to  believe  that  any  such  law  or 
laws  have  been  or  are  being  violated,  they  shall  prosecute  or 
cause  to  be  prosecuted  all  such  corporations  or  persons  guilty 
of  such  violation.  In  order  to  enable  said  board  of  trans- 
portation to  efficiently  perform  their  duties  under  this  act,  it 
is  hereby  made  their  duty  to  cause  one  of  their  number  at  least 
once  in  six  months  to  visit  each  county  in  the  state  in  which 
is  or  shall  be  located  a  public  warehouse  and  personally  in(|uire 
into  the  management  of  such  warehouse  business.     Id.  sec.  5400. 

Statement  of  public  warehousemen  : 

It  shall  be  the  duty  of  every  owner,  lessee  and  manager  of 
every  public  warehouse  in  tliis  state  to  furnish  in  writing,  under 
oath,  at  such  times  as  said  board  of  transportation  shall  re- 
quire and  prescribe,  a  statement  concerning  the  condition  and 
management  of  his  business  as  such  warehouseman.  Id.  sec. 
5401. 

Cancellation  of  warehouse  licenses  : 

Said  board  of  transportation   arc  hereby  authorize. I  to  hear 


526  NEBRASKA    LAWS. 

and  determine  all  ap})lications  for  the  cancellation  of  warehouse 
licenses  in  this  state,  which  may  be  issued  in  pursuance  of  any 
laws  of  this  state  and  for  that  purpose  to  make  and  adopt  such 
rules  and  regulations  concerning  such  hearing  and  determination 
as  may  fron:i  time  to  time  by  them  be  deemed  proper.  And  if, 
ujjon  such  hearing,  it  shall  appear  that  any  public  warehouse- 
man has  been  guilty  of  violating  any  law  of  this  state  concern- 
ing the  business  of  public  warehousemen,  said  commissioners 
may  cancel  and  revoke  the  license  of  said  public  warehouse- 
men, and  immecUately  notify  the  officer  who  issued  such  license 
of  such  revocation  anrl  cancellation,  and  no  person  whose  license 
as  a  public  warehouseman  shall  be  cancelled  or  revoked  shall 
be  entitled  to  another  license  or  to  carry  on  the  business  in  this 
state  of  such  public  warehouseman  until  the  expiration  of  not 
less  than  six  months  from  the  date  of  such  revocation  and  can- 
cellation, and  mitil  he  shall  have  again  been  licensed ;  Provided, 
That  this  section  shall  not  be  construed  as  to  prevent  any  such 
warehouseman  from  delivering  any  grain  or  other  property  on 
hand  at  the  time  of  such  revocation  or  cancellation  of  his  said 
license;  and  all  licenses  issued  in  violation  of  the  provisions  of 
this  section  shall  be  deemed  null  and  void.     Id.  sec.  5402. 

Power  to  examine  books,  etc. : 

The  property,  books,  records,  accounts,  papers  and  proceed- 
ings of  all  such  public  warehousemen  shall  at  all  times,  during 
business  hours,  be  subject  to  the  examination  and  inspecti(^n 
of  the  said  board  of  transportation,  and  they  shall  have  power 
to  examine  under  oath  or  affirmation  any  and  all  owners,  man- 
agers, lessees,  agents  and  employees  of  such  public  warehouses 
and  other  persons  concerning  any  matter  relating  to  the  condi- 
tion and  management  of  such  business.     Id.  sec.  5403. 

May  examine  witness,  etc.  : 

In  making  any  examinations  as  contemplated  in  this  act  or 
for  the  purpose  of  obtaining  information  pursuant  to  this  act, 
said  board  of  transportation  shall  have  the  power  to  issue  sub- 
poenas for  the  attendance  of  witness  and  may  administer  oaths. 
In  case  any  person  shall  willfully  fail  or  refuse  to  obey  said  sub- 
poena, it  shall  be  the  duty  of  the  county  court  of  any  county 


N  Kill;  ASK  A.  ')-21 

upon  application  ol'  said  board  ui  tiaiisportatiou  to  issue  an 
attachnient  for  such  witness,  and  compel  such  witness  to  attend 
before  the  said  board  of  tiaiisportatioii,  and  <!;ive  his  tc'stimoiiy 
upon  such  matters  as  shall  be  lawfully  reciuired  by  the  said 
board  of  transjjortation,  and  the  said  court  shall  have  power 
to  punisii  for  contempt  as  in  other  cases  of  refusal  to  obey  the 
process  and  order  of  such  court,     fd.  sec.  5404. 

Penalty  .i^aiiist  witness : 

Any  person  who  shall  willfully  neglect  or  refuse  to  (jl)ey  tlu; 
process  of  subjxena  issued  by  said  board  of  transportation  and 
appear  and  testify  as  therein  retjuired  shall  l)e  ?;uilty  of  a  mis- 
demeanor and  shall  be  Hablc  to  an  indictment  in  any  court  of 
competent  jurisdiction,  and  on  conviction  thereof  shall  l)e  pun- 
ished for  each  offense  jjy  a  fine  of  not  less  than  twenty-five  (25) 
dollars,  nor  more  than  five  hundred  (500)  dollars,  or  l)y  im- 
prisonment of  not  m()r(>  tlian  thirty  days,  or  both,  in  the  (\\s- 
cretion  of  the  court  before  which  such  conviction  shall  be  had. 
Id.  sec.  5405. 

Penalty  against  luiblic  warehousemen,  etc. : 

Every  railroad  corporation  and  every  owner,  lessee,  manager 
or  employee  of  any  public  warehouse  who  shall  willfully  neglect 
to  make  and  furnisli  any  report  required  in  this  act  at  the  time 
herein  required,  or  who  shall  willfully  and  unlawfully  hinder, 
delay  or  obstruct  said  board  of  ti'ansportation  in  the  discharge 
of  the  duties  hereb}"  imposed  upon  them  sluill  forfeit  ;ind  pay 
a  sum  of  not  less  than  one  hundred  dollars  ($100)  nor  more 
than  five  hundred  dollars  ($500)  for  each  offense,  to  be  recov- 
ered in  an  action  of  debt  in  the  name  and  for  the  use  of  the 
people  of  the  state  of  Nebraska.     Id.  sec.  5400. 

Attorney  j^eneral  and  county  attorney  to  prosecute  suits : 

It  shall  be  the  duty  of  the  attorney  general  and  the  county 
attorney  in  every  district  and  county  on  the  request  of  said 
board  of  transportation  to  institute  and  j^rosecute  any  and  all 
suits  and  proceedings  which  they  or  any  of  them  shall  be  di- 
rected Iw  said  board  of  transj)ortation  to  institute  and  prose- 
cute for  a  violation  of  this  act  or  any  law  of  this  state  concern- 


528  NEBKASKA    LAWS. 

ing  public  warehouses  or  the  officers,  employees,  owners,  opera- 
tors, or  agents  of  any  such  public  warehouse.     Id.  sec.  5407. 

Same — lu  uame  of  people  : 

All  such  prosecutions  shall  be  in  the  name  of  the  people  of 
the  state  of  Nebraska,  and  all  moneys  arising  therefrom  shall  be 
paid  into  the  state  treasury  by  the  sheriff  or  other  officer  collect- 
ing the  same.  No  suits  commenced  by  said  board  of  trans- 
portation shall  be  dismissed  except  said  board  shall  consent 
thereto.     Id.  sec.  5408. 

Right  of  iudivicluals  saved  : 

This  act  shall  not  be  so  construed  as  to  waive  or  affect  the 
right  of  any  person  injured  by  the  violation  of  any  law  in  re- 
gard to  public  warehouses  from  prosecuting  for  his  private  dam- 
ages in  any  manner  allowed  by  law.     Id.  sec.  5409. 

Board  of  transportation  to  establish  grades  : 

AVithin  thirty  days  after  this  act  becomes  a  law  the  said 
board  of  transportation  shall  establish  a  proper  number  and 
standard  of  grades  for  the  inspection  of  grain  and  may  alter  or 
change  the  same  from  time  to  time:  Provided,  no  modification 
or  change  of  grades  shall  be  made,  or  any  new  ones  established, 
without  public  notice  being  given  of  such  contemplated  change, 
for  at  least  thirty  days  prior  thereto,  by  publication  in  one  or 
more  daily  newspai)er.s  printed  in  each  city  containing  ware- 
houses of  Class  A,  and,  provided  further,  that  no  mixture  of  old 
and  new  grades,  even  though  designated  by  the  same  names  or 
distinction,  shall  be  permitted  while  in  store.     Id.  sec.  5410. 

Committee  of  appeals  : 

Within  twenty  days  after  this  act  takes  effect  the  said  board 
of  transportation  shall  appoint  three  discreet  and  competent 
persons  to  act  as  a  committee  of  appeals  in  every  city  wherein 
is  located  a  public  warehouse  of  Class  A,  who  shall  hold  their 
office  for  one  year,  and  until  tlieir  successors  are  appointed. 
And  every  year  thereafter  a  like  committee  shall  he  appointed 
by  the  said  board  of  transportation,  who  shall  hold  their  office 
for  one  year  and  until  their  successors  are  appointed:  Provided, 
said   board   of  transportation  shall  have  in  their  discretion  to 


NEBRASKA.  529 

remove  from  office  any  member  of  said  comniittcc  at  any  time, 
and  fill  vacancies  thus  created  by  the  appointment  of  other  dis- 
creet persons.     Id.  sec.  5411. 

Appeals — Notices : 

In  all  matters  involving  doubt  on  the  part  of  the  chief  in- 
spector or  any  assistant  inspector  as  to  the  proper  insjjcction 
of  any  lot  of  grain  or  in  case  any  owner,  consignee  or  shipper  of 
grain,  or  any  warehouse  manager  shall  be  dissatisfied  with  the 
decision  of  the  chief  inspector  or  any  assistant  inspector,  an 
appeal  may  be  made  to  said  committee  of  appeal  and  the  de- 
cision of  a  majority  of  said  committee  shall  be  hnal.  Said 
board  of  transjjortation  are  authorized  to  make  tdl  necessary 
rules  governing  the  manner  of  appeals  as  herein  provided.  And 
all  complaints  in  regard  to  the  inspection  of  grain  and  all  no- 
tices requiring  the  services  of  the  committeee  of  appeal  may  be 
served  on  said  committee  or  may  be  filed  with  the  warehouse 
registrar  of  said  city,  who  shall  immediately  notify  said  com- 
mittee of  the  fact  and  who  sliall  furnish  said  committee  ^^^th 
such  clerical  assistance  as  may  hv  necessary  for  the  proper  dis- 
charge of  their  duties.  It  shall  be  the  duty  of  said  committee 
on  receiving  such  notice  to  innnediately  act  on  and  render  a 
decision  in  each  case.     Id.  sec.  5412. 

Committee  on  appeals — Oath — Bond— Who  may  serve  on  : 

The  said  conmiittee  on  appeals  shall,  before  entering  upon 
the  duties  of  their  office,  take  an  oath  as  in  the  case  of  other  in- 
spectors of  grain,  and  shall  execute  a  bond  in  the  penal  sum  of 
five  thousand  dollars  ($5,000)  with  like  conditions  as  is  provided 
in  the  case  of  other  inspectors  of  grain,  which  said  bond  shall  be 
subject  to  the  approval  of  the  said  board  of  transportation. 
It  is  further  provided  that  the  salaries  of  said  conunittee  (m 
appeals  shall  be  fixed  by  the  said  board  of  transportation  and 
be  paid  from  the  inspection  fund,  or  by  the  party  taking  the 
appeal,  under  such  rules  as  the  board  of  transportation  shall 
prescribe,  and  all  necessary  expenses  incurred  in  carrying  out 
the  provisions  of  this  act,  except  as  herein  otherwise  provided, 
shall  be  paid  out  of  the  fund  collected  for  the  insjiection  serxice 
upon  the  order  of  the  said  board  of  transportation  on  the  state 
34 


530  NEBRASKA    LAWS. 

treasurer :  Provided,  that  no  person  shall  be  appointed  to  serve 
on  the  committee  of  appeal  who  is  a  purchaser  of  or  a  receiver 
of  grain  or  other  articles  to  be  passed  upon  by  said  committee. 
Id.  sec.  5413. 

Registered  for  collection — Inspection   fees : 

No  grain  shall  be  deliveretl  from  store  from  any  public  ware- 
house of  Class  A  for  which  or  representing  which  warehouse 
receipts  shall  have  been  issued,  except  upon  the  return  of  such 
receipts  stamped  or  otherwise  plainly  marked  by  the  ware- 
house registrar  with  the  words  ■'Registered  for  collection,"  and 
the  date  thereof,  and  said  board  of  transportation  shall  have 
power  to  fix  the  rates  of  charges  for  the  inspection  of  grain  both 
into  and  out  of  th(^  public  warehouse,  which  charges  shall  be  a 
lien  upon  all  grain  so  inspected,  as  may  be  collected  of  the 
owner,  receiver  or  shipper  of  such  grain,  in  such  manner  as  the 
said  board  of  transportation  may  prescribe.     Id.  sec.  5414. 

Deposit  of  inspection  fund  : 

All  money  collected  for  the  inspection  fund  shall  be  depos- 
ited with  the  state  treasurer,  who  shall  be  liable  under  his  official 
bond  for  the  proper  care  of  same,  and  no  payment  shall  be  made 
therefrom  except  by  order  of  the  said  board  of  transportation 
as  they  may  prescribe.     Id.  sec.  5415. 

Weighmaster,  appointment  of  assistants  : 

That  there  shall  be  appointed  by  the  state  board  of  trans- 
portation in  all  cities  where  there  is  state  inspection  of  grain,  a 
state  weighmaster,  and  such  assistants  as  shall  be  necessary. 
Id.  sec.  5416. 

Duties : 

Said  state  weighmaster  and  assistants  shall,  at  the  place 
aforesaid,  supervise  and  have  exclusive  control  of  the  weighing 
of  grain  and  other  property  which  may  be  subject  to  inspection, 
and  the  inspection  of  scales  and  the  action  and  certificate  of 
such  weighmaster  and  assistants  in  the  discharge  of  their  afore- 
said duties  shall  be  conclusive  upon  all  parties  in  interest.  Id. 
sec.  5417. 


NEBKA.SKA.  031 

Fix  fees  : 

The  said  board  of  transportation  shall  fix  the  fees  to  be  paid 
for  the  weighing  of  grain  or  other  property,  which  fees  shall  he 
paid  equally  by  all  parties  interested  in  the  pin-ohase  and  sale 
of  the  property  weighed,  on  scales  insj)ected  and  tested.  Id. 
sec.  5418. 

Weighiiiaster— Qualifications -Bond— Coiiippiisaf  ion  : 

Said  state  weighniaster  and  assistants  shall  not  l)e  a  member 
of  any  board  of  traile  or  association  of  like  character.  Th(;y 
shall  give  bonds  in  the  sum  of  five  thousand  (5,000)  dollai-s  con- 
ditioned for  the  faithful  discharge  of  their  duties,  and  shall  re- 
ceive such  compensation  as  the  board  of  railroad  and  warehouse 
commissioners  shall  determine.     Id.  sec.  5419. 

May  adopt  rules : 

The  said  board  of  transportation  shall  adopt  such  rules  and 
regulations  for  the  weighing  of  grain  or  other  property  as  they 
shall  deem  proper.     Id.  sec.  5420. 

Neglect  of  duty — Penalty  : 

In  case  any  person,  warehouseman  or  railroad  corporation  or 
any  of  their  agents  or  employees  shall  refuse  or  prevent  the  afore- 
said state  weighmaster  or  either  of  his  assistants  from  having  ac- 
cess to  their  scales,  in  the  regular  performance  of  their  (kities,  in 
super\'ising  the  weighing  of  any  grain  or  other  j)roj)erty  in  ac- 
cordance with  the  tenor  and  meaning  of  this  act,  they  shall  for- 
feit the  sum  of  one  hundred  (100)  dollni-s  for  each  and  every 
offense,  to  be  recovered  in  an  action  of  debt  before  any  justice 
of  the  peace  in  the  name  of  the  peoj^le  of  the  state  of  Nebraska, 
such  penalty  or  forfeiture  to  be  paid  to  the  county  in  which  the 
suit  is  brought,  and  shall  also  be  required  to  pay  all  cost  of 
prosecution. 

Repeal : 

All  existing  acts  inconsistent  ^^^th  this  act  are  hereby  re- 
pealed.    Id.  sec.  5421. 

Fraudulent  approiniatiou  of  merchandise  by  aeent : 

Every  factor  or  agent  who  shall  deposit  any  merchandise 


532  NEBRASKA    LAWS. 

intrusted  or  consigned  to  him,  or  any  document  so  possessed 
or  intrusted  aforesaid,  as  a  security  for  any  money  borrowed, 
or  negotiable  instrument  received  by  sucli  factor  or  agent,  and 
shall  apply  or  dispose  of  the  same  to  his  own  use,  contrary  to 
good  faith,  and  with  intent  to  defraud  the  true  owner,  and 
every  factor  or  agent  who  shall  soil  any  merchandise  or  other 
l)r()i)erty  intrusted  or  consigned  to  him,  in  the  like  manner,  and 
with  the  like  fraudulent  intent,  and  every  other  person  who 
shall  knowingly  connive  with,  or  aid,  or  assist  any  such  factor 
or  agent  in  any  such  fraudulent  deposit  or  sale,  shall  be  impris- 
oned in  the  penitentiary  not  exceeding  three  years  nor  less  than 
one  year.     Id.  sec.  7693. 

Frauds  by  cousignors : 

If  the  owner  of  any  merchandise,  or  other  person  in  whose 
name  any  merchandise  shall  be  shipped  or  delivered  to  the 
keeper  of  any  warehouse,  or  other  factor  or  agent,  to  be  shipped, 
shall,  after  the  advancement  to  him  or  them  of  any  money,  or 
the  giving  to  him  or  them  of  any  negotiable  security,  by  the 
consignee  or  consignees  of  such  merchandise,  without  the  con- 
sent of  such  consignee  or  consignees  being  therefor  first  had  and 
obtained,  make  any  disposition  of  such  merchandise,  different 
from,  and  inconsistent  with  that  agreed  upon  between  such 
owner  or  other  person  aforesaid,  and  such  consignee  or  con- 
signees, at  the  time  of  said  money  being  so  advanced,  or  said 
negotiable  security  being  so  given,  with  the  intent  to  defraud 
or  injure  such  consignee  or  consignees,  said  owner  or  other 
person  aforesaid,  and  all  other  persons  conni^dng  with  him  or 
them  for  the  purpose  of  deceiving,  defrauding,  or  injuring  said 
consignees  shall  be  imprisoned  in  the  penitentiary  not  more 
than  three  years  nor  less  than  one  year:  Provided,  however,  That  no 
person  shall  be  subject  to  prosecution  under  this  section,  who 
shall,  before  disposing  of  such  merchandise,  pay,  or  offer  to  pay 
to  the  consignee  or  consignees  the  full  amount  of  any  advance- 
ment made  thereon.     Id.  sec.  7694. 

False  bills  of  lading  and  receipts  : 

If  any  person  shall  execute  and  dehver,  or  shall  cause,  or  pro- 


NKUIiASKA.  '):V-\ 

cure  to  be  executotl  and  clcliveicd  to  any  {jerson,  any  false  or 
fictitious  bill  of  lading,  receipt,  schedule,  invoice,  or  other  writ- 
ten instrument,  to  the  purport  or  effect  that  any  goods,  wares, 
merchandise,  hve  stock  or  other  pro))erty  usually  transport(  1 
by  carriers,  had  been  or  were  held,  delivered,  received,  placed, 
or  deposited  on  board  of  any  steamboat,  or  water  craft,  navi- 
gating the  waters  in  or  bordering  upon  the  state  of  Nebraska, 
or  at  the  freight  office,  depot,  station,  or  other  j)lace  designated 
or  used  by  any  railroad  company  or  other  common  carrier,  for 
the  reception  of  any  such  property  so  usually  transported  b}- 
carriers,  when  such  goods,  wares,  merchandise,  live  stock,  or 
other  property  were  not  held,  or  had  not  in  fact  and  good  faith 
been  delivered,  received,  or  deposited  on  board  of  such  steam- 
boat, or  other  water  craft,  or  at  such  freight  office,  depot,  sta- 
tion, or  other  place  so  designated  or  used  by  any  common  carrier 
for  the  reception  of  such  property,  when  such  bill  of  lading,  re- 
ceipt, invoice,  schedule,  or  other  written  instrument  was  made 
and  delivered,  according  to  the  purport  and  effect  of  sucli  bill 
of  lading,  receipt,  invoice,  schedule,  or  other  written  instrument 
with  intent  to  deceive,  defraud,  or  injure  any  person  or  corpo- 
ration, or  if  any  person  shall  indorse,  assign,  transfer,  or  put  off 
or  attempt  to  indorse,  assign,  transfer,  or  put  off  any  such  false 
or  fictitious  bill  of  lading,  receipt,  invoice,  schedule,  or  other 
written  instrument,  knowing  the  same  to  be  false,  fraudulent, 
or  fictitious,  the  person  offending  shall  be  imprisoned  in  the 
penitentiary  not  exceeding  four  years  nor  less  than  one  year. 
Id.  sec.  7695. 


Same : 

If  any  person  shall  execute  and  deliver,  or  shall  cause  or  pro- 
cure to  be  executed  and  delivered  to  any  other  person,  any 
false  and  fictitious  warehouse  receipt,  acknowledgment,  (^r 
other  instrument  of  wTiting,  to  the  purport  and  effect  that  such 
person,  or  any  other  person  or  persons,  coi)artnershi)),  firm,  body 
politic  or  corporate,  which  he  or  she  rejiresents,  or  pretends  to 
represent,  held  or  had  received  in  store,  or  held  or  h.id  received 
in  any  warehouse,  or  in  any  other  place,  or  held  or  had  received 
into  possession,  custody,  or  control,  of  such  person  or  persons, 


534  NEBRASKA    LAWS. 

copartnership,  tirin,  or  body  politic,  any  goods,  or  wares,  or 
merchandise,  when  such  goods,  wares,  or  merchandise  were  not 
held  and  had  not  been  received  in  good  faith,  according  to  the 
purport  and  effect  of  such  warehouse  receipt,  acknowledg- 
ment or  instrument  of  writing,  witli  intent  to  defraud,  deceive, 
or  injure  any  person  whomsoever,  oi'  if  any  person  shall  in- 
dorse, assign,  transfer  or  deliver,  or  shall  attem]:)t  to  indorse, 
transfer  and  d(4iver,  to  any  other  person  any  such  false  and 
fictitious  warehouse  receipt,  acknowledgment,  or  instrument  of 
writing,  knowing  the  same  to  be  false,  fraudulent,  or  fictitious, 
such  person  shall  be  punished  by  imprisonment  in  the  peniten- 
tiary not  more  than  three  years  nor  less  than  one  year.  Id. 
sec.  7696. 

Frauds  of  parties  having  possession  of  merchandise  hy 
virtue  of  warehouse  receipts,  etc. : 

If  any  person  or  persons,  or  the  agent  of  any  person  or  per- 
sons, ha^^ng  in  his  or  their  possession,  custody,  or  control,  any 
goods,  wares  or  merchandise,  by  virtue  of  any  genuine  instru- 
ment of  writing,  of  the  purport  or  effect  of  any  such  instrument 
of  writing  as  is  mentioned  in  either  of  the  last  two  preceding 
sections,  shall  without  authority,  and  with  intent  to  injure  or 
defraud  the  rightful  owner  thereof,  sell,  assign,  transfer,  or 
incumber  such  goods,  wares  or  merchandise,  or  any  part  thereof, 
to  the  value  of  fifty  dollars  or  upward,  or  shall  in  any  way  con- 
vert the  same  to  his  own  use,  or  if  the  consignor  or  consignors, 
or  the  agent  of  such  consignor  or  consignors  of  any  goods,  wares 
or  merchandise,  not  being  the  absolute  owner  thereof,  and  not 
having  authority  to  stop,  countermand,  or  change  the  consign- 
ment thereof,  or  not  having  authority  to  sell  or  incumber  the 
same  during  the  transit,  shall,  after  the  shipment  thereof  on 
board  any  water-craft,  or,  after  the  deposit  thereof  in  or  upon 
any  vehicle  for  land  carriage,  in  any  way  stop,  countermand, 
or  change  the  consignment  thereof,  or  shall  sell,  dispose  of,  or 
incumber  such  goods,  wares  or  merchandise,  during  their  transit, 
or  after  their  delivery,  or  shall  in  any  way  convert  the  same,  or 
any  part  thereof,  to  his  or  her  own  use,  to  the  value  of  fifty  dol- 
lars or  upward,  so  that  the  rightful  owner  thereof  shall  sustain 
a  loss  thereby  to  the  value  of  fifty  flollars  or  upward,  the  person 


n'i:hi;aska.  53.0 

so  offending,  with  intent  as  aforesaid,  sliall  he  iinj)ns()ned  in  ihr. 
penitentiary  for  a  term  nt)l  less  than  one  iioi-  more  tlian  four 
years.     Id.  sec.  7697. 

Note.     For  laws  provirlinjj  penalties  for  sottinfr  fire  to  or  burglarizing 
dwellings,  warehouses,  Ptr.,  .see  Crimiual  Code,  ch.  II,  sec.  48  el  Keq. 


536  NEBRASKA    DECISIONS. 


DECISIONS  AFFECTING  WAREHOUSEMEN. 

A. 

Bailment — Delivery  to  true  owner  always  good  defense  for  the 
bailee — Conversion. 

A  bailee  is  bound  to  restore  the  property  to  his  bailor,  or  ac- 
count for  it,  but  he  has  in  legal  contemplation  accounted  for  it 
when  he  has  delivered  it  to  one  whose  demand  and  right  of  pos- 
session are  paramount  to  that  of  his  bailor.  He  may,  if  he 
chooses,  yield  possession  to  a  stranger  claiming  the  property, 
by  taking  the  risk  of  establishing  the  title  thus  recognized. 
A  refusal  to  deliver  to  the  rightful  owner  constitutes  a  conver- 
sion of  the  property.  Shellenberg  v.  Fremont,  E.  &  M.  V .  R.  Co., 
45  Neb.  487. 

Same — Special  contract. 

Where  a  bailee  agreed  to  keep  property  intrusted  to  him  in  a 
vault,  he  was  bound  under  the  terms  of  his  contract  to  so  keep 
the  property,  although,  under  the  general  principles  of  law  gov- 
erning his  duty  as  bailee,  he  would  not  have  been  bound  to  exer- 
cise so  high  a  degree  of  care.     Butler  v.  Greene,  49  Neb.  280. 

Same — Involuntary  bailee — Entitled  to  compensation. 

An  involuntary  bailee  of  goods  is  entitled  to  be  paid  a  rea- 
sonable compensation  for  the  storag(>  and  care  until  they  are 
demanded  of  him.  This  case  distinguished  from  Moline,  Mil- 
burn  &  Stoddard  Co.  v.  Neville,  .38  Neb.  433,  where  judgment 
was  given  for  plaintiff  who  had  declared  on  an  express  contract, 
which  judgment  was  reversed  on  appeal  for  the  reason  that  the 
verdict,  finding  that  an  express  contract  existed,  was  unsus- 
tained  by  the  e\ddence.  Moline,  Milhurn  &  Stoddard  Co.  v. 
Neville,  52  Neb.  574. 

B. 

Ordinary  care. 

A  bailee  is  required  to  exercise  such  care  as  a  person  of  rea- 
sonable prudence  would  exercise  under  similar  circumstances. 
Butler  V.  Greene,  49  Neb.  280. 


NEMIIASKA.  537 

Conversion — Failure  to  deliver  on  demand. 

A  bailee  in  possession  of  property  belonging  to  another  is 
under  duty  to  surrender  it  upon  demand  up(jn  the  i)ayineiit  of 
just  charges.  A  sufficient  excuse  would  exist  if  thcic  had  bcm 
a  prior  lawful  seizure  of  the  property  under  judicial  process 
issued  against  the  owner.  A  refusal  to  surrender  without  a 
valid  excuse  constitutes  a  conversion  for  which  the  bailee  is 
liable.     Wood  Harvester  Co.  v.  Dobry,  59  Neb.  590. 

H. 

Lien — Possession  essential — Rule  stated. 

It  is  a  fundamental  rule,  that  exclusive  possession  of  the 
claimant  whether  a  factor,  broker  or  warehouseman,  is  essen- 
tial to  the  existence,  or  continuance,  of  a  lien  in  favor  of  one? 
who  holds  property  in  subordination  to  the  will  or  control  of 
another.   Moline,  M.  &  S.  Co.  v.  Wood,  M.  &  R.  M.  Co.,  49  Neb.  869. 

Same — No  lien  attaches  if  contrary  to  terms  of  contract. 

Where  a  defendant  warehouseman  contracted  to  receive  all 
of  the  goods  consigned  to  it  by  the  plaintiff,  to  store  the  same 
in  its  warehouse,  and  "  to  reship  any  of  said  goods  or  parts  of 
same,"  on  the  order  of  the  phuntiff,  or  his  agents,  it  was  held 
that  this  provision  negatived  any  lien  of  tiie  warehouseman  for 
storage  charges.  This  condition  of  the  contract  Innng  inter- 
posed as  preserving  to  the  plaintiff  his  right,  at  pleasure,  to 
sell  and  deliver  the  goods  consigned  to  the  defendant,  and  as 
imposing  upon  defendant  a  corresponding  duty  to  yield  po.«?ses- 
sion  thereof  upon  plaintiff's  order,  relying  upon  the  personal 
credit  of  the  latter  for  the  amount  of  his  storage  charges.  Muline, 
M.  &  S.  Co.  V.  Wood.  M.  d^  R.  M.  Co.,  49  Neb.  869. 

K. 

Execution — Cannot  issue  against  bailee. 

Property  held  by  a  bailee  as  such  cannot  be  lawfully  attached 
in  an  execution  issued  against  him.  McClelland  et  al.  v.  Scrog- 
gin,  35  Neb.  536. 

Warehouse  receipt — Negotiation  after  iLnthdrawol  of  part  of  the 
deposited  property. 

The  plaintiff,  a  warehouseman,  had  issued  a  receipt  for  pro|>- 


538  NEBRASKA   DECISIONS. 

erty  stored  in  his  warehouse  to  the  depositor  and  owner.  The 
owner  of  the  property  withdrew  a  part  tliereof  from  the  ware- 
house and  subsequently  assigned  the  receipt  for  the  full  amount 
to  a  purchaser  for  value  and  without  notice  that  part  of  the 
property  had  lieen  withdrawn.  The  purchaser  presented  the 
receipt  to  plaintiff  who  delivered  all  the  original  property  re- 
maining and  pays  to  such  purchaser  the  value  of  the  property 
previously  withdrawn.  In  an  action  against  the  former  owner 
held  that  plaintiff  was  entitled  to  recover  the  amount  paid  the 
purchaser.     Michel  v.  Ware,  3  Neb.  229. 

Same — Same — Qualified  indorsement — Effect. 

An  indorsement  of  a  warehouse  receipt  ''without  guarantee" 
will  not  release  the  assignor  of  the  implied  warranty  governing 
in  all  sales  of  property,  that  the  subject-matter  of  the  contract 
is  in  esse  at  the  time  it  is  made.     Id. 

Same — Delivery  without  return  of  receipt — Conversion — Re- 
ceipt need  not  be  in  any  particular  form. 

The  defendant,  a  warehouseman,  received  and  stored  corn 
and  issued  therefor  a  receipt,  as  follows:  "Received  in  store  for 
account  of  B.  &  W.,  3,000  sacks  of  corn."  Subsequently,  and 
without  the  knowledge  of  the  defendant,  B.  &  W.  assigned  the 
receipt  to  the  plaintiff,  as  security  for  a  pre-existing  debt.  The 
defendant  delivered  to  B.  &  W.  the  corn  represented  by  this 
receipt,  and  did  not  procure  the  return  of  the  receipt.  Held, 
that,  on  the  above  state  of  facts,  the  defendant  warehouseman 
was  liable  to  the  plaintiff  for  the  value  of  the  corn.  Further 
held  that  the  contention  that  the  receipt  issued  was  not  a 
formal  warehouse  receipt  which  did  not  provide  in  terms  that 
it  might  be  assigned,  could  not  be  sustained.  Harris  v.  Brad- 
ley,  2  Dill.  284. 

Same — Who  bona  fide  holder,  a  question  foz  the  jury. 

Whether  or  not  a  person  who  acquires  a  warehouse  receipt 
by  assignment  is  a  bona  fide  holder  is  one  for  the  determination 
of  the  jury.     Michel  v.  Ware,  3  Neb.  229. 


NKEKASKA.  539 

K. 

Bill  of  lading — Indorsement — Effect. 

Bills  of  lading  are  symbols  of  property,  and  when  properly 
indorsed  operate  as  a  delivery  of  the  property  itself,  investing 
the  indorsees  with  a  constructive  custody  which  serves  all  the 
purposes  of  an  actual  possession,  and  so  continues  until  there 
is  a  valid  and  complete  delivery  of  the  property,  under  and  in 
pursuance  of  the  bill  of  lading,  to  the  persons  entitled  to 
receive  the  same.  Union  Pacific  Ry.  Co.  v.  Johnson  et  at.,  45 
Neb.  57. 


540  XKVADA    1)ECISI(JNS. 


CHAPTER  XXVIII. 

NEVADA. 

Note.  It  seems  that  there  are  in  Nevada  no  statutes  in  force  pertaining 
to  warehousemen  as  such. 

DECISIONS  AFFECTING  WAREHOUSEMEN. 

A. 

Bailment — Presumption  if  goods  are  lost — Conversion. 

When  a  person  is  intrusted  with  the  cai'e  and  custody  of  goods, 
it  is  his  duty  to  return  them  at  the  end  of  the  baihnent,  or  ac- 
count for  their  loss  or  show  that  it  happened  without  legal  neg- 
ligence on  his  part.  If  he  fails  to  do  either  the  presumption  is 
that  he  has  converted  them,  or  that  they  have  been  lost  through 
his  negligence,  and  he  is  responsible  for  them.  Dolan  v.  Clark 
23  Nev.  203. 

B. 

Same — Ordinary  care — Gross  negligence. 

This  is  equally  true  whether  by  the  nature  of  the  bailment, 
the  bailee  is  bound  to  exercise  ordinary  care  and  diligence  or  is 
liable  only  for  gross  neglect.     Id. 

N. 

Same — Loss  of  goods — Burden  of  proof. 

The  burden  of  proving  that  they  have  been  lost  without  his 
fault,  being  upon  him,  it  is  not  sufficient  for  him  to  simply  pro- 
duce evidence  to  tliat  effect.  Ho  must  establish  the  fact  to  the 
satisfaction  of  the  court.     Id. 


NEW    IIAMI'SHIRE.  541 


CHAPTER  XXIX. 
NEW  HAMPSHIRE. 

LAWS    PERTAINING   TO    WAREHOUSEMEN. 

Bailee  converting  to  liis  own  nse — Lsirceny  : 

If  any  person  to  whom  any  money,  goods,  or  j)roperty  which 
may  be  the  subject  of  larceny  shall  have  been  delivered  or  in- 
trusted for  keeping,  or  carriage,  or  use,  or  for  manufacture,  or 
work  thereon,  shall  fraudulently  dispose  of  or  convert  to  his 
own  use  the  same  or  any  part  thereof,  or  shall  secrete  the  same 
or  any  part  thereof,  with  intent  so  fraudulently  to  dispose  of 
or  convert  to  his  own  use,  he  shall  bo  doomed  guilty  of  larceny 
thereof,  and  shall  bo  punished  as  for  the  larceny  of  goods  of  the 
same  value.     Sec.  11,  ch.  275,  P.  S.  1901. 

Note.  It  seems  that,  there  are,  in  New  Hampshire,  no  statutes  pertain- 
ing to  warehousemen,  as  such. 


542  NEW    HAMPSHIRE    DECISIONS. 

DECISIONS  AFFECTING  WAREHOUSEMEN. 

A. 

Bailment — iSale  by  bailee  without  authurity — Bailor  protected. 

If  a  bailee  sell  property  without  authority,  a  purchaser,  al- 
though buying  in  good  faith,  and  without  notice,  acquires  no 
title,  and  the  owner  may  recover  his  pi'operty  or  its  value  from 
any  one  in  possession.  Johnson  v.  Willey,  46  N.  H.  75;  Sanborn 
V.  Colman,  6  N.  H.  U;Loveioy  v.  Jones,  30  N.  H.  im;  Sargent  v. 
GUe,  8  N.  H.  325. 

B. 

Ordinary  negligence. 

A  bailee  for  hire  is  answeral]>le  for  ordinary  negligence.  Shel- 
den  V.  Robinson,  7  N.  H.  157;  Smith  v.  Nashua  &  Lowell  R.  R., 
27  N.  H.  86. 

H. 

Lien. — Waiver  of — Possession. 

The  right  of  lien  is  to  be  deemed  to  be  waived  when  the  party 
enters  into  a  special  agreement  inconsistent  with  the  existence 
of  the  lien,  or  from  which  a  waiver  of  it  may  be  fairly  inferred. 
Possession  is  not  only  essential  to  the  creation,  but  also  to  the 
continuance  of  a  lien ;  when  the  party  voluntarily  parts  with 
the  possession  of  the  property  upon  which  the  lien  has  attached, 
he  is  devested  of  the  lien.     Pickett  v.  Bullock,  52  N.  H.  354. 

K. 

Attachment  against  bailed  property. 

Where  property  has  been  bailed  for  hire,  for  a  specific  time, 
a  creditor  of  the  bailor  cannot  attach  the  property  and  take  it 
from  the  bailee,  during  the  term  of  th(^  bailment,  \^'here  such 
attachment  was  made,  and  the  property  removed  by  the  ofhcer, 
held  that  the  bailee  was,  notwithstanding,  liable  to  the  bailor  for 
rent.     Hartford  v.  Jackson,  11  N.  H.  145. 


NEW    JERSEY.  643 


CHAPTER  XXX. 
NEW  JERSEY. 

LAWS  PERTAINING  TO  WAREHOUSEMEN. 

n  Act  to  prevent  the  issue  of  false  receipts  and  to  punish 
fraudulent  transfers  of  property  by  wanihousemen,  wharfingers 
and  others,  and  to  provide  for  the  transfer  of  merchandise,  re- 
ceipts and  other  vouchers  of  indorsement.  Approved  March  11, 
1881. 

Warehouseman  not  to  issue  receipt,  etc. — Unless  j^oods, 
etc.,  shall  be  in  store  and  under  his  control : 

That  no  warehouseman,  wharfinger,  public  or  private  in- 
spector, or  custodian  of  property,  or  other  person  or  corpora- 
tion, shall  issue  any  receipt,  acceptance  of  an  order,  or  other 
voucher,  for  or  upon  wares,  merchandise,  provisions,  grain, 
flour,  or  other  produce  or  commodity,  to  any  person  or  persons, 
or  corporation,  purporting  to  be  the  owner  or  owners  thereof, 
or  entitled  or  claiming  to  receive  the  same,  unless  such  goods, 
wares,  merchandise,  provisions,  grain,  flour  or  other  commodity 
shall  have  been  actually  received  into  the  store  or  upon  the 
premises  of  such  warehouseman,  wharfinger,  inspector,  custo- 
dian or  other  person,  or  corporation,  as  stated  therein,  and  shall 
be  in  the  store  or  upon  the  premises  as  aforesaid,  and  under  his 
or  its  control  at  the  time  of  issuing  such  receipt,  acceptance  or 
voucher.     P.  L.  1881,  p.  100  sec.  1. 

Not  to  issue  receipt,  etc — As  security  for  indebtedness, 
unless  goods,  etc.,  shall  be  in  store  and  under  his  control : 

That  no  warehouseman,  wharfinger,  custodian  or  other  per- 
son or  corporation  shall  issue,  or  cause  to  be  issued,  any  receipt 
or  other  voucher  upon  any  goods,  wares,  merchandise,  jjrovi- 
sions,  grain,  flour  or  other  produce  or  commodity,  to  any  per- 
son or  persons,  or  corporation,  as  security  for  any  money  loane.l 


544  NEW    JEKSEY    LAWS. 

or  other  indebtedness,  unless  such  goods,  wares,  merchandise, 
provisions,  grain,  flour  or  other  pro(kice  or  comniochty  shall 
be  at  the  time  of  issuing  such  receipt  of  other  voucher  in  the 
custody  of  such  warehouseman,  wharfinger  or  other  person  or 
corporation,  and  shall  be  in  store  or  upon  the  pr(.^mises  and 
under  his  or  its  control  at  the  time  of  issuing  such  receipt  or 
other  voucher  as  aforesaid.     Id.  sec.  2. 

Wheu  not  to  issue  second  or  dnplicate  receipt,  etc. : 

That  no  warehouseman,  wharfinger,  inspector,  custodian  or 
other  person  or  corporation,  shall  issue  any  second  or  duplicate 
receipt,  acceptance  or  other  voucher,  for  or  upon  any  goods, 
wares,  merchandise,  provisions,  grain,  flour  or  other  produce  or 
commodity  while  any  former  receipt,  acceptance  or  voucher, 
for  or  upon  any  such  wares,  merchandise,  provisions,  grain, 
flour  or  other  produce  or  commodity  as  aforesaid,  or  any  part 
thereof,  shall  be  outstanding  and  uncancelled  without  stamp- 
ing or  writing  in  ink  across  the  face  of  the  same  "duplicate." 
Id.  sec.  3. 

Not  to  sell  or  remove  goods,  etc.,  for  which  receipt  has 
been  given,  without  consent  of  person  holding  receipt : 

That  no  warehouseman,  wharfinger,  custodian  or  other  per- 
son or  corporation,  shall  sell  or  incumber,  ship,  transfer  or  in 
any  manner  remove  beyond  his  immechate  control  any  goods, 
wares,  merchandise,  provisions,  grain,  flour  or  other  produce 
or  commodity,  for  which  a  receipt  shall  have  been  given  by  him 
as  aforesaid,  whether  received  for  storing,  shipping,  grinding, 
manufacturing  or  other  purposes,  without  the  written  consent 
of  the  person  or  persons  holding  such  receipt,  except  in  case  of 
a  notice  in  WTiting  served  upon  the  person  holding  such  receipt, 
demanding  removal  of  the  same,  in  which  case  the  same  shall 
be  removed  within  twenty  days  after  the  service  of  such  notice. 
Id.  sec.  4. 

Master  of  vessel,  etc.,  not  to  give  bill  of  lading,  etc.,  un- 
less goods  have  actually  been  shipped : 

That  no  master,  owner  or  agent  of  any  vessel,  or  boat  of  any 
description,  or  officer  or  agent  of  any  railroad  company,  or 


NEW    JERSEY.  54,} 

Other  person,  shall  sign  or  give  any  bill  of  lading,  roceipt  <»r 
other  voucher  or  document,  for  any  nun-chandisc  or  property, 
from  which  it  shall  appear  that  such  merchandise  or  jjroperty 
has  been  shipped  on  boartl  any  vessel,  boat  or  i-ailroad  car  un- 
less the  same  shall  have  been  actually  siiipp(!tl,  and  put  on 
board  such  vessel,  boat  or  car,  and  shall  be  at  the  time  actually 
on  board  or  delivered  to  such  vessel,  boat,  or  car,  to  be  carried 
and  conveyed  as  expressed  in  such  bill  of  lading  or  other  voucher 
or  document.     Id.  sec.  5. 

How  warehouse  receipts,  etc.,  may  be  transferred : 

That  all  warehouse  receipts  or  other  vouchers  given  for 
any  goods,  wares,  merchandise,  provisions,  grain,  flour  or  other 
produce  or  commodity  stored  or  deposited  with  any  ware- 
houseman, wharfinger,  corporation  or  other  person  or  per- 
sons, may  be  transferred  by  indorsement  or  delivery  thereof, 
and  any  person  to  whom  the  same  may  be  transferred  shall 
be  deemed  and  taken  to  be  the  owner  of  the  goods,  wares  and 
merchandise  therein  specified  without  notice  of  such  transfer, 
or  an  actual  delivery,  or  change  of  possession  of  the  goods, 
wares,  merchandise,  grain,  flour  or  other  produce  or  commodity 
named  therein,  so  far  as  to  give  validity  to  any  pledge,  security, 
lien  or  transfer  made  or  created  by  any  person  or  persons,  cor- 
poration or  corporations;  but  no  property  shall  lie  delivered 
except  on  surrender  tmd  cancellation  of  said  original  receipt  or 
the  indorsement  of  such  delivery  thereon,  in  case  of  j)artial  de- 
livery ;  all  warehouse  receipts,  however,  which  shall  have  the 
words  "not  negotiable" -plainly  written,  printed  or  stamped 
on  the  face  thereof,  shall  be  exempt  from  the  provisions  of  this 
section:  Provided,  however,  that  the  person  or  persons,  corpo- 
ration or  corporations,  to  whom  such  receipts  or  vouchers  are 
indorsed  and  delivered,  shall  be  subject  to  the  same  conditions 
as  the  person  or  persons,  corporation  or  corporations,  to  whom 
the  same  were  originally  delivered.     Id.  sec.  6. 

Penalty  for  the  violation  of  this  act : 

That  any  warehouseman,  wharfinger,  inspector,  custodian  or 
other  person  or  corporation  who  shall  violate  any  of  the  fore- 
going provisions  of  this  act  shall  be  deemed  guilty  of  a  inisde- 
35 


546  NEW    JERSEY    LAWS. 

meanor,  and,  upon  indictment  and  conviction,  shall  be  fined  in 
any  sum  not  exceeding  one  thousand  dollars  or  imprisonment 
not  exceeding  one  year,  or  by  both  such  fine  and  imprisonment ; 
and  all  and  every  person  or  persons,  corporation  or  corpora- 
tions, aggrieved  by  the  violation  of  any  of  the  provisions  of  this 
act,  may  have  and  maintain  an  action  at  law  against  the  per- 
son or  persons,  corporation  or  corporations,  violating  any  of 
the  provisions  of  this  act,  to  recover  all  damages,  immediate 
or  consequential,  which  he  or  they  may  hav(^  sustained  by  rea- 
son of  any  such  violation  as  aforesaid,  before  any  court  of 
competent  jurisdiction,  whether  such  person  shall  have  been 
convicted  as  hereinbefore  mentioned  or  not.     Id.  sec.  7. 

Act  not  to  apply  to  property  removed  by  operation  of  law  : 

That  so  much  of  this  act  as  forbids  the  delivery  of  property, 
except  on  surrender  and  cancellation  of  the  original  receipt,  or 
the  indorsement  of  such  delivery  thereon,  in  case  of  partial  de- 
livery, shall  not  apply  to  property  removed  by  operation  of 
law.     Id.  sec.  8. 

An  act  concerning  warehousekeepers.  Approved  April  5, 
1886. 

Storage,  cartage,  etc.,  to  be  the  first  lien  on  goods  left  for 
storage : 

That  the  proprietor  or  proprietors  of  any  warehouse  for  the 
storage  of  goods  and  chattels  shall  have  the  first  lien  on  all 
goods  and  chattels  left  with  them  for  storage  for  the  amount 
of  the  bill  due  the  proprietor  of  any  such  storage  warehouse  for 
such  storage,  or  for  any  charges  for  carting  or  insurance  con- 
tracted by  the  owner  to  be  paid  to  him  therefor,  and  shall 
have  the  right,  without  the  process  of  law,  to  retain  the  same 
until  the  amount  of  indebtedness  is  discharged.  P.  L.  1886, 
p.  181,  sec.  1. 

When  property  may  be  sold  at  public  sale  : 

That  all  property  held  on  storage,  for  which  the  bill  for  stor- 
age or  such  other  charges  has  not  been  paid  for  one  year,  may, 
in  the  whole  or  in  part,  be  exposed  by  said  proprietor  for  sale 
at  public  auction,  upon  a  notice  of  said  sale  being  first  pub- 


NKW     .IKKSKV.  547 

lished  for  the  space  of  two  weeks  in  some  newspaper  circulat- 
ing in  the  city  or  township  in  which  such  goods  are  stored,  and 
also  after  five  days'  notice  of  said  sale,  s(!t  up  in  five  of  the  most 
public  places  in  said  city  or  township,  and  after  mailing,  if 
their  addresses  can  be  ascertained,  to  the  owners  of  said  goods, 
or  to  any  one  known  by  said  proprietor  to  claim  or  to  ai)pear 
to  have  any  mortgage  or  lien  on  oi'  bill  of  sale  for  such  gcjods, 
notice  of  sale  two  weeks  before  the  day  of  sale;  and  the  pro- 
ceeds of  said  sale  shall  be  applied  to  the  payment  of  such  lien 
and  the  expenses  of  such  sale;  and  no  more  of  such  goods  shall 
be  sold,  if  they  are  of  a  nature  as  to  be  easily  separated  or 
divided,  than  shall  be  necessary,  as  near  as  may  be,  to  pay  such 
Ken  and  expenses,  and  the  balance,  if  any,  shall  be  paid  over 
to  the  owner  of  such  goods  when  the  goods  shall  be  taken  away 
or  settled  for  in  full.     Id.  sec.  2. 

When  warehousenian  not  liable  for  taxed  costs.  Approved 
March  27,  1893  : 

That  whenever  a  warehouseman  at  the  time  any  goods  or 
chattels  are  placed  on  storage  with  him  shall  obtain  from  the 
party  placing  such  goods  or  chattels  on  storage  a  statement  in 
writing  that  such  goods  are  the  sole  and  absolute  proj^ert}'  of 
the  bailor  aforesaid,  and  in  any  action  of  replevin  thereafter 
brought  in  any  court  for  the  recovery  of  such  goods  or  chattels 
by  any  person  other  than  the  bailor  aforesaid,  no  costs  of  suit 
shall  be  adjudged,  taxed  or  recovered  against  said  warehouse- 
keeper  in  any  action  aforesaid,  whenever  judgment  is  obtained 
against  the  defendant  in  such  action.     P.  L.  1893,  p.  451,  sec.  1. 


NEW   JERSEY   DECISIONS. 

DECISIONS  AFFECTING  WAREHOUSEMEN. 

A. 

Bailment — Interpleader . 

A  bailee  is  not  entitled  to  call  upon  a  party  to  interplead  as 
to  the  right  to  the  property,  on  the  ground  that,  as  to  such 
party,  he  is  a  stakeholder  or  trustee,  when  at  the  time  of  the 
bailment,  the  party  was  unknown  and  had  no  connection  with 
the  transaction,  and  if  his  claim  respecting  the  property  is 
true,  the  bailee's  possession  of  the  property,  if  not  tortious  at 
its  inception,  became  so  after  demand  and  refusal  to  deliver. 
First  Nat.  Bank  v.  Bininger  et  ah,  11  C.  E.  Gr.  345. 

Same — Same — Equity  jurisdiction. 

In  cases  of  adverse  independent  titles,  the  party  holding  the 
property  must  defend  himself  as  well  as  he  can  at  law,  and  he 
is  not  entitled  to  the  assistance  of  a  court  of  equity,  for  that 
would  be  to  assume  the  right  to  try  merely  legal  titles,  upon 
a  controversy  between  different  parties,  where  there  is  no 
privity  of  contract  between  them  and  the  third  person  who 
calls  for  an  interpleader.     Id. 

Conversion  by  bailee— May  set  up  amount  of  claim  secured  by 
lien. 

A  bailee,  converting  goods  on  which  he  has  bestowed  labor 
and  acquired  a  lien,  may,  in  an  action  of  trover  brought  by  the 
owner,  set  up  his  lien-claim  in  reduction  of  damages.  Long- 
street  V.  Phile,  10  Vr.  63. 

H. 

Ldens — At  common  law  and  statutory. 

It  is  one  of  the  characteristics  of  common-law  liens,  as  dis- 
tinguishing from  liens  created  by  contract  or  statute,  that  the 
former  as  a  general  rule  attach  to  the  property  itself,  without 
any  reference  to  ownershijj,  and  override  all  other  rights  in  the 
property,  while  the  latter  are  sul)oi-dinate  to  all  prior  exist- 
ing rights  therein.     Sullivan  v.  Clijton,  26  Vr.  324. 


u. 

Attempt  to  compel  service  by  in  junction— Analocjy  between  one. 
conducting  .stockyard  and  a  war chou.se man— Not  subject  to  public 
control — Equity  jurisdiction. 

Complainant,  a  railroad  corporation,  attempted  to  compel  tin- 
defendant,  a  corporation  created  for  the  purpose  of  cj.rryiM^^  on 
a  stockyard  business,  to  receive  live  stock  offcM-ed  to  it   un<ler 
certain  conditions,  on  th(>  ground  that  as  it  Wiis  engaged  in  a 
business  of  a  public  nature  it  was  required  to  receive  live  stock 
from  any  one  offering  the  same.     The  court  held  that  as  de- 
fendant's business  was  one  of  recent  origin  it  was  diflieult  to 
find  its  counterpart  in  any  of  the   established    instruments    of 
commerce,  but  that  it  bore  a  closer  resemblance  to  the  business 
carried  on  by  warehousemen  than  to  any  other  business  known 
to  the  law.     Further  that  in  order  to  entitle  complainant  to 
the  relief  asked  it  must  show  its  right  thereto  by  virtue  of  a  c(jn- 
tract,  a  usage  or  a  statute;  that  in  this  case  complainant  failed 
to  prove  any  such  contract,  usage  oi-  law  and  that  an  eciuity 
court  was  therefore  without  jurisdiction.     The  case  of  Munn 
V.  Illinois,  94  U.  S.   113,  discussed  and  distinguished.     There 
there  was  a  duty  owing  under  a  statute,  although  it  had  been 
enacted  subsequent  to  the  erection  of  the  warehouse  and  es- 
tablishment  of  the   business.     The   business   was  such,    how- 
ever, as  was  at  all  times  subject  to  legislative  control.     Dela- 
ware, L.  &  W.  R.  R.  Co.  V.  Central  Stock  Yard  d'  Transit  Co., 
18  Stew.  50,  aff'd  1  Dick.  280. 


o50  NEW    MEXICO    DECISIONS. 


CHAPTER  XXXI. 
NEW  MEXICO. 

Note.  It  seems  that  there  are,  in  New  Mexico,  no  laws  pertaining  to 
warehousemen,  as  such. 

DECISIONS  AFFECTING  WAREHOUSEMEN. 

A. 

Bailment — Ordinary  care. 

A  bailee  for  hire  is  bound  to  take  as  much  care  of  property 
intrusted  with  hiiu  as  a  prudent  man,  mindful  of  his  own  in- 
terests, would  take  of  his  own  property  of  a  similar  kind.  Waldo 
V.  Beck  with,  1  N.  Mex.  97. 

R. 

Bill  of  lading — Exemption,  effect  of. 

Where  the  bill  of  lading  provided  that  a  carrier  should  not 
be  liable  for  losses  resulting  from  unavoidable  accident,  it  was 
held  such  an  exemption  would  not  limit  or  restrict  the  respon- 
sibility or  liability  imposed  by  law  upon  common  carriers. 
Seligman  &  Bro.  v.  Amijo,  1  N.  Mex.  459. 


IMEW     iUKK.  551 


CHAPTER  XXXII. 
NEW  YORK. 

LAWS  PERTAINING  TO   WAREHOUSEMEN. 

Warehonseman  to  hold  possession  subject  to  order  of 
court : 

Whenever  in  any  action  or  proceeding  commenced,  or  aljcnit 
to  be  commenced,  there  shall  be  brought  into  question  the  title 
to  or  right  of  possession  of  any  goods,  wares  or  merchandise 
on  storage  in  any  warehouse,  the  warehouse  company,  or  per- 
son or  persons  having  the  possession  thereof  as  such  warehouse- 
man shall,  after  service  upon  it,  them  or  him,  of  a  notice  setting 
forth  the  alleged  claim  of  the  plaintiff,  and  the  name  of  the 
court  in  which  the  action  or  proceeding  is  pending,  or  about 
to  be  commenced,  hold  such  goods,  wares  or  merchandise  sub- 
ject to  the  order  of  the  court  in  which  such  action  or  proceeding 
is  about  to  be  or  may  be  brought,  and  sliall  deliver  tlie  same  to 
the  person  or  persons  named  in  any  order,  judgment  or  decree 
made  by  such  court  for  the  delivery  thereof;  after  the  payment 
to  such  warehouseman  for  all  lawful  charges  for  the  care  and 
custody  of  such  goods,  wares  or  merchandise;  but  no  order, 
judgment  of  decree  for  the  delivery  of  such  goods,  wares  or 
merchandise,  shall  be  made  except  upon  proof  to  the  satisfac- 
tion of  the  court  that  the  person  named  in  said  order  is  the 
owner  or  entitled  to  the  possession  thereof,  after  service  of  a 
notice  as  hereinbefore  specified,  (upon  the)  warehouse  com- 
pany or  the  persons  or  person  having  possession  of  any  such 
goods,  wares  or  merchandise,  and  the  court  or  any  judge  thereof 
may  direct  the  attendance  of  such  warehouse  comjxmy,  persons 
or  person,  its,  their  or  his  agents,  servants  or  employees,  and 
the  production  of  all  papers,  books  or  documents  pertaining 
to  the  property  in  question  for  the  purpose  of  examination  as 
to  the  title  of  such  goods,  wares  and  merchandise.  Laws,  1895, 
ch.  633. 


i)52  NEW    YORK    LAWS. 

Section  2  of  the  above  law  held  to  be  uiicoustitutioual : 

The  second  section  of  the  above  provides  that:  ''No  ware- 
house company  or  person  or  persons  lawfully  engaged  in  the 
business  of  storing  goods,  wares  and  merchandise  for  hire,  shall 
be  made  a  party  defendant  in  any  action  concerning  the  title 
to  or  possession  of  any  goods,  wares  or  merchandise,  held  on 
storage  by  such  warehouse  company,  persons  or  person,  unless 
such  warehouse  company,  persons  or  person,  so  holding  the 
same  on  storage,  shall  claim  some  right,  title  or  interest  of,  in 
or  to  the  same,  other  than  a  lien  for  the  lawful  charges  growing 
out  of  the  care  and  custody  thereof."  In  the  trial  of  an  action 
of  replevin  for  the  recovery  of  the  plaintiff's  goods,  the  plain- 
tiff alleged  that  she  had  made  a  tender  of  all  lawful  charges, 
the  complaint  was  dismissed  on  motion  of  the  defendant  on 
the  ground  that  the  above  section  applietl  and  that  a  warehouse- 
man could  not  be  made  a  defendant  except  where  his  claim 
was  for  come  other  charge  than  on  a  lien  for  storage.  It  was 
held  on  appeal  that  the  dismissal  of  the  complaint  was  error, 
that  the  facts  made  by  the  pleadings  should  have  been  tried 
in  the  usual  manner  before  a  jury  and  that  section  two  of  the 
Laws  of  1895,  ch.  633,  as  given  above,  was  unconstitutional  and 
void.  It  would  give  to  warehousemen  an  opportunity  to  make 
whatever  charges  they  might  wish  and  would  protect  them 
from  being  made  defendants  in  an  action  for  the  recovery  of 
such  goods  although  such  charges  might  be  excessive  and  ex- 
tortionate. Therefore,  the  case  was  reversed  and  sent  back 
for  trial.  Cottew  v.  Diibe,  32  Misc.  632;  FoUett  Wool  Co.  v. 
Albany  Terminal  Warehouse  Co.,  61  App.  Div.  296. 

Rate  of  Interest  on  loans  or  warehouse  receipts  : 

Upon  advances  of  money  repayable  on  demand  to  an  amount 
not  less  than  five  thousand  dollars  made  upon  warehouse  re- 
ceipts, bills  of  lading,  certificates  of  stock,  certificates  of  deposit, 
bills  of  exchange,  bonds  or  other  negotiable  instruments,  pledged 
as  collateral  security  for  such  repayment,  any  bank  or  indi- 
vidual banker  may  receive  or  contract  to  receive  and  collect 
as  compensation  for  making  such  advances  any  sum  to  be 
agreed  upon  in  writing  by  the  parties  to  such  transaction. 
Laws,  1900,  ch.  310,  sec.  56. 


NEW    VUiUv.  003 

Warehouseman's  liens : 

A  warehouse  company,  warehouseman  or  other  person  law- 
fully engaged  in  the  business  of  storing  goods,  wares  and  mer- 
chandise for  hii-e  has  a  lien  on  goods  deposited  and  stored  with 
him  for  his  storage  charges,  and  for  moneys  advanced  ljy  iiini 
for  cartage,  labor,  weighing  and  coopering  in  relation  to  such 
goods,  or  other  goods  belonging  to  the  same  owner,  and  he 
may  detain  such  goods  until  his  lien  is  paid.  Laws,  LSD?, 
art.  6,  ch.  418,  sec.  73. 

Enforcement  of  liens  on  personal  property  by  sale— Sale 
of  personal  property  to  satisfy  a  lien  : 

A  lien  against  personal  property,  other  than  a  mortgage  on 
chattels,  if  in  the  legal  possession  of  the  lienor,  may  l)e  satis- 
fied by  the  public  sale  of  such  property  according  to  the  j)ro- 
visions  of  this  article.     Id.  sec.  80. 

Before  such  sale  is  held  the  lienor  shall  serve  a  notice  upon 
the  owner  with  due  diligence  within  such  county,  if  such  owner 
can  be  found  when  such  lien  arose,  if  not,  then  to  the  person 
for  whose  account  the  same  is  then  held  personally,  jjrovided 
such  service  can  be  made  with  due  diligence,  within  the  county 
where  such  lien  arose,  but  if  such  person  cannot  with  due  tlili- 
gence  be  found  within  such  county,  then  such  notice  shall  be 
served  by  mailing  it  to  him  at  his  last  known  place  of  resi- 
dence, or  to  his  last  known  post-office  address.  A  like  notice 
shall  be  served  in  the  same  way  upon  any  person  who  shall  have 
given  to  the  lienor  notice  of  an  interest  in  the  property  subject 
to  the  lien.  Such  notice  shall  contain  a  statement  of  the  fol- 
lowing facts:  First,  the  nature  of  the  debt  or  the  agreement 
under  which  the  lien  arose,  with  an  itemized  statement  of  the 
claim  and  the  time  when  due;  second,  a  brief  description  of  the 
personal  property  against  which  the  lien  exists;  third,  the  esti- 
mated value  of  such  property;  fourth,  the  amount  of  such  lien 
at  the  date  of  the  notice.  It  shall  also  require  such  owner  or 
person  to  pay  the  amount  of  such  lien  on  or  before  a  day  men- 
tioned therein,  not  less  than  ten  days  from  the  service  thereof, 
and  shall  state  the  time  when  and  place  where  such  property 
will  be  sold,  if  such  amount  is  not  paid.  If  the  agreement  on 
which  the  Hen  is  based  provides  for  the  continuous  care  of 


554  NEW    VOIIK    LAWS. 

property  the  lienor  is  also  entitled  to  receive  all  sums  which 
may  accrue  under  the  agreement,  subsequent  to  the  notice  and 
prior  to  payment  or  a  sale  of  the  property ;  and  the  notice  shall 
contain  a  statement  that  such  additional  sum  is  demanded. 
Such  notice  shall  be  verified  by  the  lienor  to  the  effect  that 
the  lien  upon  such  property  is  valid,  that  the  debt  upon  which 
such  lien  is  founded  is  due,  and  has  not  been  paid  and  that  the 
facts  stated  in  such  notice  are  true  to  the  best  of  his  knowledge 
and  belief.     Id.  sec.  81  (as  amended).* 

Sale  to  be  advertised  (as  amended)  : 

Each  sale  of  personal  propert}^  to  satisfy  a  lien  thereon  shall 
be  at  public  auction  to  the  highest  bidder,  and  shall  be  held  in 
the  city  or  town  where  the  lien  was  acquired.  After  the  time 
for  the  payment  of  the  amount  of  the  lien  specified  in  the  notice 
required  to  be  served  by  the  preceding  section,  notice  of  such 
sale,  describing  the  property  to  be  sold,  and  stating  the  name 
of  the  owner  or  person  for  whose  account  the  same  is  then  held 
and  the  time  and  place  of  such  sale,  shall  be  published  once  a 
week  for  two  consecutive  weeks,  in  a  newspaper  published  in 
the  town  or  city  where  such  sale  is  to  be  held,  and  such  sale 
shall  be  held  not  less  than  fifteen  days  from  the  first  publica- 
tion; if  there  be  no  newspaper  published  in  such  town,  such 
notice  shall  be  posted  at  least  ten  days  before  such  sale  in  not 
less  than  six  conspicuous  places  therein.     Id.  sec.  82. 

Redemption  before  sale  : 

At  any  time  befoi'e  such  property  is  so  sold  the  owner  thereof 
may  redeem  the  same  by  paying  to  the  lienor  the  amount  due 
on  account  of  the  lien  and  whatever  legitimate  expenses  have 
been  incurred  at  the  time  of  such  payment  in  serving  the  notice 
and  advertising  the  sale  as  required  in  this  article.  Upon  mak- 
ing such  payment,  the  owner  of  such  property  is  entitled  to 
the  possession  thereof.     Id.  sec.  83. 


*Copj'  of  printed  law  :is  issued  by  Secretary  of  State.  Bill  as  introduced 
was  amended  previous  to  enactment.  Should  read:  "Before  such  sale  is 
held  the  lienor  shall  serve  a  notice  upon  the  owner  if  such  owner  can  be 
found,  with  due  diligence  within  the  county  where  such  lien  arose." 


NEW    VOKK.  r.r.r. 

Disposition  of  proceeds : 

Of  tlie  proceeds  of  such  sale,  the  lienor  shall  retain  an  amount 
sufficient  to  satisfy  his  lien  and  the  expenses  of  advertisement 
and  sale.     The  balance  of  such  proceeds,  if  any,  shall  be  held 
by  the  lienor  subject  to  the  demand  of  the  owner,  or  his  as- 
signee or  legal  representative,  and  a  notice  that  such  balance 
is  so  held  shall  be  served  personally  or  by  mail  ujjcjji  the  owner 
of  the  property  sold.     If  such  balance  is  not  claimed  l)y  tlu; 
owner  or  his  assignee  or  legal  representative  within  thirty  days 
from  the  day  of  sale,  such  balance  shall  be  deposited  with  the 
treasurer  or  chamberlain  of  the  city  or  village,  or  the  super- 
visor of  the  town  where  such  sale  is  held.     There  shall  be  filed 
with  such  deposit  the  affidavit  of  the  lienor,  stating  the  name 
and  place  of  residence  of  the  owner  of  the  proi)erty  sold,  if 
known,  the  article  sold,  the  prices  obtained  therefor,  that  the 
notice  required  by  this  article  was  duly  served  and  iiow  served 
upon  such  owner,  and  that  such  sale  was  legally  and  how  ad- 
vertised.    There  shall  also  be  filed  therewith  a  copy  of  the  notice 
served  upon  the  owner  of  the  property  and  of  the  notice  of  sale 
published  or  posted  as  required  by  this  article.     The  officer  with 
whom  such  balance  is  deposited  shall  credit  the  same  to  the 
owner  of  the  property,  and  pay  the  same  to  such  owner,  his 
assignee  or  legal  representative,  on  demand  and  satisfactoiy 
evidence  of  identity.     If  such  balance  remains  in  the  posses- 
sion of  such  officer  for  a  period  of  five  years,  unclaimed  by  the 
person  legally  entitled  thereto,  it  shall  be  transferred  to  the 
general  funds  of  the  town,  village  or  city,  and  b(>  applied  and 
used  as  other  moneys  belonging  to  such  town,  village  or  city. 
Id.  sec.  84. 

Remedy  not  exclusive : 

The  provisions  of  this  article  do  not  preclude  any  other  rem- 
edy by  action  or  otherwise,  now  existing,  for  the  enforcement 
of  a  lien  against  personal  property,  or  bar  the  right  to  recover 
so  much  of  the  debt  as  shall  not  be  paid  by  the  proceeds  of  the 
sale  of  the  property.     Id.  sec.  85. 

Laws,  1897,  ch.  418,  art.  7,  as  amended  bv  Laws,  1899. 
ch.  369. 

(This  law  repeals  all  of  ch.  33G,  Laws,  1879.) 


666  NEW    YORK    LAWS. 

Elevator  charges  regulated  : 

The  maxiniuiu  charge  for  elevating,  receiving,  weighing  and 
discharging  grain  by  means  of  floating  and  stationary  ele- 
vators and  warehouses  in  this  state  shall  not  exceed  the  fol- 
lowing rates,  namely:  For  elevating,  receiving,  weighing  and 
discharging  grain,  five  eighths  of  one  cent  a  bushel.  In  the 
process  of  handling  gi-ain  by  means  of  floating  and  stationary 
elevators,  the  lake  vessels  or  propellers,  the  ocean  vessels  or 
steamships,  and  canal  boats,  shall  only  be  required  to  pay  the 
actual  cost  of  trimming  or  shoveling  to  the  leg  of  the  elevator 
when  unloading,  and  trimming  cargo  when  loading.  Laws 
1888,  ch.  581,  sec.  1. 

Violations  thereof  a  mis(leine.aiior — Penalty  : 

Any  person  or  persons  violating  the  provisions  of  this  act 
shall  upon  conviction  thereof  be  adjudged  guilty  of  a  mis- 
demeanor, and  be  punished  by  a  fine  of  not  less  than  two  hun- 
dred and  fifty  dollars  and  costs  thereof.     Id.  sec.  2. 

Damages — How  recovered  : 

Any  person  injured  b}^  the  violation  of  the  provisions  of 
this  act  may  sue  for  and  recover  any  damages  he  may  sus- 
tain against  any  person  or  persons  violating  said  provisions. 
Id.  sec.  3. 

Act  how  to  apply  : 

This  act  shall  not  apply  to  any  village,  town  or  city  having 
less  than  one  hundred  and  thirty  thousand  population.  Id. 
sec.  4. 

This  act  shall  take  effect  inmiediately.     Id.  sec.  5. 

Fees  and  charges  for  elevators  and  warehouses  : 

The  maxinmm  charge  for  elevating,  recei\'ing,  weighing  and 
discharging  grain  by  means  of  floating  and  stationary  ele- 
vators and  warehouses  in  any  city  having  a  population  of  one 
hunrlred  and  thirty  thousand  or  over,  shall  not  exceed  five 
eighths  of  one  cent  a  bushel.  In  the  process  of  handling  grain 
by  means  of  floating  and  stationary  elevators,  the  lake  pro- 
pellers or  vessels,  the  ocean  vessels  or  steamships  and  canal 


NEW    VolMv.  557 

boats  shall  only  be  required  to  pay  the  actual  cost  of  triiniiiiiif; 
or  shoveling  to  the  leg  of  the  elevator  when  unloading,  and 
trimming  cargo  when  loading;  and  in  any  case  the  fee  charged 
for  the  use  of  a  shovel  operated  by  steam  or  olhcr  mechanical 
power,  in  connection  with  any  floating  or  stationary  elevator, 
shall  not  exceed  the  sum  of  one  dollar  and  fifty  cents  for  each 
thousand  bushels  elevated. 

For  every  violation  of  any  provision  of  this  article,  the  per- 
son committing  such  violation  shall  forfeit  to  the  peoj)le  of  the 
state  the  sum  of  two  hundred  and  fifty  dollars.  .\  jx'rson  in- 
jured by  a  violation  of  this  section  may  recover  any  damag€\s 
sustained  from  the  person  violating  the  same. 

This  act  shall  take  effect  inmiediately.  Laws,  1896,  ch.  'M(S, 
sec.  32,  as  amended  by  Laws,  1903,  ch.  366. 

Overcharging,  a  misdemeanor : 

A  person  who  charges  for  elevating,  receiving  or  discharging 
grain  by  means  of  floating  or  stationary  elevators  a  greater 
sum  than  is  allowed  by  law  is  guilty  of  a  misdemeanor.  Laws, 
1896,  ch.  551,  sec.  384c. 

Above  act  held  to  he  constitntional : 

The  above  act  held  to  be  a  constitutional  exercise  of  the 
police  power  of  the  state,  that  the  business  of  elevating  grain 
was  one  "affected  with  a  ])ul)lic  interest"  and  that  therefore 
the  legislature  had  a  right  to  prescribe  the  maximum  rates 
which  might  be  charged  for  storage.  People  v.  Budd,  117  X.  Y. 
1,  aff'd  143  l".  S.  517.  (For  complete  collection  of  cases  on 
the  above  see  New  York  Decisions,  page  601.) 

Demand  loans  of  five  thousand  dollars  an<I  upwards,  on 
collateral,  may  bear  any  interest : 

In  any  case  hereafter  in  which  advances  of  money,  repayable 
on  demand,  to  an  amount  not  less  than  five  thousand  dollars, 
are  made  upon  warehouse  receipts,  bills  of  lading,  certificates 
of  stock,  certificates  of  deposit,  bills  of  exchange,  bonds  or  other 
negotiable  instruments  pleflged  as  collateral  .security  for  such 
repayment,  it  shall  be  lawful  to  receive  or  to  contract  to  receive 
and  collect,  as  compensation  for  making  such  atlvances,  any 


558  NEW    YORK    LAWS. 

sum  to  be  agreed  upon  in  writing  by  the  parties  to  such  trans- 
action. Laws,  1882,  ch.  237,  sec.  1.  Section  2  repeals  all  in- 
consistent acts. 

When  factor  deemed  owner  : 

Every  factor  oi'  other  agent,  intrusted  mth  the  possession  of 
any  hill  of  lading,  custom  house  permit,  or  warehousekeeper's 
recei))t  for  the  delivery  of  any  such  merchandise,  and  every 
such  factor  or  agent  not  having  the  documentary  evidence  of 
title,  who  shall  be  intrusted  with  the  possession  of  any  mer- 
chandise for  the  i)urpose  of  sale,  or  as  a  security  for  any  ad- 
vances to  be  made  or  obtained  thereon,  shall  be  deemed  to  be 
the  true  owner  thereof,  so  far  as  to  give  vahdity  to  any  con- 
tract made  by  such  agent  with  any  other  person,  for  the  sale 
or  disposition  of  the  whole  or  any  part  of  such  merchandise, 
for  any  money  advanced,  or  negotiable  instrument  or  other 
obligation  in  writing,  given  by  such  other  person  upon  the 
faith  thereof.     Laws,  1830,  ch.  179,  sec.  3. 

Merchandise  pledged  by  factor : 

Every  person  who  shall  hereafter  accept  or  take  any  such 
merchancUse  in  deposit  from  any  such  agent,  as  security  for 
any  antecedent  debt  or  demand,  shall  not  acquire  thereby, 
or  enforce  any  right  or  interest  in  or  to  such  merchandise  or 
document,  other  than  was  possessed  or  might  have  been  en- 
forced by  such  agent  at  the  time  of  such  deposit.     Id.  sec.  4. 

Rights  of  trne  owner : 

Nothing  contained  in  the  last  two  preceding  sections  of  this 
act  shall  be  construed  to  prevent  the  true  owner  of  any  mer- 
chandise so  deposited,  from  demanding  or  receiving  the  same, 
upon  repayment  of  the  money  advanced,  or  on  restoration  of 
the  security  given,  on  the  deposit  of  such  merchandise,  and 
upon  satisfying  such  lien  as  may  exist  thereon  in  favor  of  the 
agent  who  may  have  deposited  the  same;  nor  from  recovering 
any  balance  which  may  remain  in  the  hands  of  the  person  with 
whom  such  merchandise  shall  have  been  deposited,  as  the 
produce  of  the  sale  thereof,  after  satisfying  the  amount  justly 
due  to  such  person  by  reason  of  such  deposit.     Id.  sec.  5. 


NEW    YORK.  559 

Sale  or  pledge  by  coniinou  carrier,  etc.: 

Nothing  contained  in  tliis  act  shall  authorize  a  common  ear- 
lier, warehousekeeper,  or  other  person  to  whom  merciiandisc 
or  other  property  may  be  committed  for  transportation  (jr 
storage  only,  to    sell  or  hypotliecate  the  same.     /(/.  sec.  6. 

Powers  of  court,  etc.  : 

Nothing  contained  in  the  last  preceding  section  siiall  be 
construed  to  prevent  the  court  of  chancery  from  compelling 
discovery,  or  granting  relief  upon  any  bill  to  be  filetl  in  that 
court  by  the  owner  of  any  merchandise  so  intrusted  or  con- 
signed against  the  factor  or  agent  by  whom  such  merchandise 
shall  have  been  aijplied  or  sold  contrary  to  the  provisions  of 
the  said  section,  or  against  any  person  who  shall  have  been 
knowingly  a  party  to  such  fraudulent  application  or  sale  there- 
of; but  no  answer  to  any  such  bill  shall  be  read  in  evidence 
against  the  defendant  making  the  same,  or  the  trial  of  any  in- 
dictment for  the  fraud  charged   in  the   bill.     Id.  sec.  8. 

Issuing  fictitious  bills  of  lading,  receipts  and  vouchers : 

A  person  who:  1.  Being  the  master,  owner  or  agent  of  any 
vessel,  or  officer  or  agent  of  any  railway,  express  or  transporta- 
tion company  or  otherwise  being  or  representing  any  carrier, 
who  dehvers  any  bill  of  lading,  receipt  or  other  voucher,  by 
which  it  appears  that  merchandise  of  any  kind  has  been 
shipped  on  board  of  a  vessel,  or  delivered  to  a  railway,  express  or 
transportation  company,  or  other  carrier,  unless  the  same  has 
been  so  shipped  or  delivered  and  is  at  the  time  actually  under 
the  control  of  such  carrier,  or  the  master,  owner  or  agent  of 
such  vessel,  or  of  some  officer  or  agent  of  such  company,  to  be 
forwarded  as  expressed  in  such  bill  of  lading,  receipt  or  voucher; 
or,  2.  Carrying  on  the  business  of  a  warehouseman,  wharfinger 
or  other  depository  of  property,  who  issues  anj'^  receipt,  bill  of 
lading  or  other  voucher  for  merchandise  of  any  kind  which 
has  not  been  actually  received  upon  the  premises  of  such  per- 
son, and  is  not  under  his  actual  control  at  time  of  issuing  such 
instrument,  whether  such  instrument  is  issued  to  a  person  as 
being  the  owner  of  such  merchandise,  or  as  security  for  any 
indebtedness;  is  guilty  of  a  misdemeanor,  jiunishable  by  im- 


560  NEW    YORK    LAWS. 

prisonment  not  exceeding  one  year,  or  by  a  fine  not  exceeding 
one  thousand  dollars,  or  by  both.  Pen.  Code,  sec.  629,  as 
amended.  Laws,  1892,  ch.  692. 

Last  two  sections  qualifled  : 

No  person  can  be  convicted  of  an  offense  under  the  last  two 
sections,  for  the  reason  that  the  contents  of  any  barrel,  box, 
case,  cask  or  other  vessel  or  package  mentioned  in  the  bill  of 
lading,  receipt,  or  other  voucher  did  not  correspond  with  the 
description  given  in  such  instrument  of  the  merchandise  re- 
ceived, if  such  description  corresponds  substantially  with  the 
marks,  labels  or  brands  upon  the  outside  of  such  vessel  or 
package,  unless  it  appears  that  the  defendant  knew  that  such 
marks,  labels  or  brands  were  untrue.     Pen.  Code,  sec.  630. 

Duplicate  receipts  iiiiist  be  marked  : 

A  person  mentioned  in  sections  628  and  629,  who  issues  any 
second  or  duplicate  receipt  or  voucher,  of  a  kind  specified  in 
those  sections,  at  a  time  while  a  former  receipt  or  voucher  for 
the  merchandise  specified  in  such  second  receipt  is  outstand- 
ing and  uncancelled,  without  writing  across  the  face  of  the 
same  the  word  "dupHcate,"  in  a  plain  and  legible  manner, 
is  punishable  by  imprisonment  not  exceeding  one  year,  or  by 
a  fine  not  exceeding  one  thousand  dollars,  or  by  both.  Id. 
sec.  631. 

Selling,  etc.— Property  received  for  transportation  or 
storage : 

A  person  mentioned  in  sections  628  and  629,  who  sells  or 
pledges  any  merchandise  for  which  a  bill  of  lading,  receipt  or 
voucher  has  been  issued  by  him,  without  the  consent  in  writing 
thereto  of  the  person  holding  such  bill,  receipt  or  voucher,  is 
punishable  by  imprisonment  not  exceeding  one  year,  or  by  a 
fine  not  exceeding  one  thousand  dollars,  or  by  both.  Id. 
sec.  632. 

Bill  of  lading,  when  to  be  cancelled  : 

A  person  mentioned  in  section  629,  who  delivers  to  another 
any  merchandise  for  which  a  bill  of  lading,  receipt  or  voucher 
has  been  issued,  unless  such  receipt  or  voucher  bears  upon  its 


J 


NEW    YORK.  5(3 J 

face  the  words  "not  negotiable,"  plainly  written  or  stamped, 
or  unless  such  receipt  is  surrendered  to  be  cancelled  at  the  time 
of  such  delivery,  or  unless,  in  the  case  of  a  i)artial  delivery,  a 
memorandum  thereof  is  indorsed  upon  such  receipt  or  voucher, 
is  punishable  by  imprisonment  not  exceeding  one  year,  or  by 
a  fine  not  exceeding  one  thousand  dollars,  or  by  both.  Id 
sec.  633. 

Property  demanded  by  process  of  law  : 

The  last  two  sections  do  not  apply  to  any  case  where  prop- 
erty is  demanded  by  virtue  of  legal  process.     Id.  sec.  634. 

An  Act  to  define  the  rights  of  persons  and  corporations  en- 
gaged in  the  business  of  storing  personal  chattels,  and  to  regu- 
late the  said  business. 

Section  1.  Whenever  hereafter  a  demand  shall  be  made  upon 
a  warehouseman  for  a  personal  chattel  held  by  him  on  storage, 
by  a  person  other  than  him  from  whom  such  chattel  was  re- 
ceived, or  other  than  the  holder  of  the  warehouse  receipt  out- 
standing, the  warehouseman  shall  with  due  diligence  give  notice 
of  the  demand  to  the  person  from  whom  the  chattel  was  re- 
ceived and  the  person  in  whose  name  a  warehouse  receipt  for 
the  chattel  is  outstanding.     Such  notice  may  be  given  personally 
or  by  mail  to  the  last  known  post-office  address  of  the  party  en- 
titled to  notice,  if  he  shall  have  registered  an  address  with  the 
warehouseman.     If  the  depositor  or  person  in  whose  name  the 
warehouse  receipt  is  outstanding  shall  not,  within  ten  days  after 
service  of  the  notice  as  aforesaid,  authorize  the  deliver}^  of  the 
chattel  to  the  claimant,  he  shall  be  deemed  to  have  refused  to 
deliver  and  the  claimant  may  sue  the  depositor  or  the  person  in 
whose  name  the  warehouse  receipt  is  outstanding,  in  replevin 
or  for  conversion.     The  warehouseman  may  refuse  to  deli\-er  a 
personal  chattel  to  the  depositor  or  holder  of  the  warehouse 
receipt  after  a  demand  is  made  upon  him  as  aforesaid  and  dur- 
ing twenty  days  after  notice  of  the  demand  to  the  depo.sitor  or 
holder  of  an  outstanding  warehouse  receipt.     The  warehouse- 
man shall  not,  by  reason  of  such  a  refusal  nor  by  reason  of  such 
retention  incur  any  liability  to  any  person  and  sliall  not  be  su(m1 
for  and  on  account  of  such  refusal  at  law  or  in  equity.     And 
36 


562  NEW    YOllK    LAWS. 

after  a  suit  in  replevin  shall  be  brought  by  the  claimant,  and  the 
warehouseman  is  notified  thereof,  the  warehouseman  shall  hold 
the  chattel  subject  to  the  order  of  the  court  in  which  such  action 
in  replevin  is  brought  and  shall  deliver  the  same  only  to  the  per- 
son named  in  the  judgment  entitled  to  the  delivery.     After  an 
action  for  conversion  of  the  personal  chattel  is  brought  by  the 
claimant  against  the  depositor  or  holder  of  a  warehouse  receipt, 
the  warehouseman  may  at  any  time  deliver  the  chattel  to  the 
holder  of  the  warehouse  receipt.     For  the  purposes  of  all  actions 
concerning  title  to  a  personal  chattel  held  by  a  warehouseman 
on  storage  or  for  the  possession  of  such  chattel,  the  possession 
of  the  warehouseman  shall  be  deemed  to  l^e  the  possession  of  the 
depositor  or  holder  of  a  warehouse  receipt.     The  depositor  of  a 
chattel  shall  register  with  the  warehouseman  his  name  and  ad- 
dress and  shall  notify  the  warehouseman  of  any  transfer  of  the 
warehouse  receipt,  gi\'ing  the  name  and  residence  of  the  trans- 
feree, and  the  depositor  or  the  transferee  shall  notify  the  ware- 
houseman of  any   change   in   such   address.     The   warehouse- 
man may  make  known  to  the  claimant  of  a  chattel  the  name 
and  address  of  the  depositor,  and  where  such  name  and  ad- 
dress is  so  made  known  the  warehouseman  shall  not  be  made 
defendant  in  an  action  for  conversion  or  replevin  unless  he  shall 
claim  some  right,  title  or  interest  in  the  chattel  other  than  a 
lawful  lien  for  lawful  charges  growing  out  of  the  care  and  cus- 
tody of  such  personal  chattel.     If  the  legality  or  amount  of  such 
charges  be  disputed,  the  warehouseman  may  be  made  a  party 
to  the  action  for  the  purpose  of  determining  that  issue  only,  and 
shall  recover  costs  if  his  claim  be  substantially  sustained.     If  the 
person  in  whose  name  a  warehouse  receipt  is  outstanding  has 
ceased  to  reside  or  to  have  a  place  of  business  at  the  address  left 
with  the  warehouseman  and  cannot,  after  due  diligence,  be  found, 
a  court  of  record  in  which  an  action  to  replevin  the  chattel  is 
pending  or  is  about  to  be  brought  may  make  an  order  that  the 
summons  may  be  served  upon  the  person  holding  the  warehouse 
receipt,  in  the  manner  provided  in  and  by  the  Code  of  Civil  Pro- 
cedure.    In  such  a  case  any  judgment  recovered  by  the  plaintiff 
shall  be  only  against  the  depositor  or  person  in  whose  name  the 
warehouse  receipt  is  outstanding  and  before  any  judgment  shall 


NKW    VOKK.  568 

be  recovered  the  plaintiff  shall  jji-ove  his  title.  If  jud^niiciit  is 
recovennl  by  the  plaintiff  tlircctiiif;  the  deHvery  of  the  ciiattrl  to 
the  ])laiiiliff,  the  warehouseman  shall  obey  tiic  judgment  and 
make  the  delivery  upon  payment  of  his  lawful  chai'ges  and  lur 
shall  not  thereafter  be  liable  to  the  depositor  or  the  holder  of  the 
warehouse  receipt  on  account  of  such  delivery. 

Sec.  2.  A  warehouseman  shall  have  a  lien  upon  goods  stored 
with  him  for  his  charges  for  storage,  cartag(>,  labor,  freight, 
insurance,  and  other  advances  thereon,  inchuhng  weighing 
and  coopering  in  relation  to  such  goods  or  other  goods  be- 
longing to  the  same  owner  and  he  may  detain  such  goods  until 
his  lien  is  paid.  Such  lien  of  a  warehouseman  shall  be  j)rior 
and  superior  to  the  lien  of  a  chattel  mortgage  and  to  any  lien 
or  right,  title  or  interest  of  the  vendor  in  a  conditional  sale  or  a 
sale  upon  installments,  where  the  chattel  mortgage  is  lujt  made 
in  the  name  of  the  depositor  or  holder  of  the  warehouse  receipt, 
and  where  the  contract  or  conditional  sale  is  not  required  by 
law  to  be  filed  and  where  the  warehouseman  has  not  actual 
knowledge  of  the  chattel  mortgage  or  conditional  sale.  A  ware- 
houseman shall  not  have  a  lien  for  storage  charges  upon  stolen 
goods. 

Sec.  3.  Whenever  a  warehouseman  shall  carry  a  personal 
chattel  to  his  warehouse  or  deliver  a  jx-rsonal  chattel  out  of 
his  warehouse  and  to  another  place,  he  shall  lie  liable  for  the 
negligence  of  himself  and  his  servants  during  Ww.  ]jacking,  loatl- 
ing,  carrying  and  unloading  of  the  personal  chatt(>l  and  shall  not 
be  liable  otherwise. 

Sec.  4.  The  term  warehouseman  in  this  act  shall  incluile 
every  })erson,  partnership,  association,  or  corjxiration  regularly 
engaged  in  the  business  of  storing  furniture,  household  effects 
and  similar  chattels. 

Sec.  5.  Tliis  act  shall  take  effect  immediately.  Laws,  li)()2. 
ch.  608. 

Section  1.  The  forest,  fish  and  game  law  is  hereby  amende(l 
by  adding  thereto  a  new  section  to  be  known  as  section  on(^  hun- 
dred and  forty-one,  which  shall  read  as  follows: 

Sec.  141.  Wherever  in  this  act. the  possession  of  fish,  game, 


564  NEW    YUKK    LAWS. 

or  the  flesh  of  any  animal,  bird  or  fish,  is  prohibited,  reference  is 
had  equall}'  to  such  fish,  game  or  flesh  coming  from  without  the 
state  as  to  that  taken  within  the  state.  Provided  nevertheless, 
that  if  there  be  any  open  season  therefor,  any  dealer  therein,  if 
he  has  given  the  bond  herein  provided  for,  may  hold  during  the 
close  season  such  part  of  his  stock  as  he  has  on  hand  undisposed 
of  at  the  opening  of  such  close  season.  Said  bond  shall  be  to  the 
I)eople  of  the  state,  conditioned  that  such  dealer  will  not  during 
the  close  season  ensuing,  sell,  use,  give  away  or  otherwise  dispose 
of  any  fish,  game,  or  the  flesh  of  any  animal,  bird  or  fish  which 
he  is  permitted  to  possess  during  the  close  season  by  this  section ; 
that  he  will  not  in  any  way  during  the  time  said  bond  is  in  force, 
violate  any  provision  of  the  forest,  fish  and  game  law;  the  bond 
may  also  contain  such  other  provisions  as  to  the  inspection  of  the 
fish  and  game  possessed  as  the  commission  shall  require,  and 
shall  be  subject  to  the  approval  of  the  commission  as  to  amount 
and  form  thereof,  and  the  sufficiency  of  sureties.  But  no  pre- 
sumption that  the  possession  of  fish  or  game  or  the  flesh  of  any 
animal,  bird  or  fish  is  lawfully  possessed  under  the  pro\'isions 
of  this  section  shall  arise  until  it  affirmatively  appears  that  the 
pro\'isions  thereof  have  been  complied  with. 

Sec.  2.  This  act  shall  take  effect  immediately.     Laws,  1902, 
eh.  194. 


NKW    YOKK.  0»i;j 

DECISIONS  AFFECTING  WAREHOUSEMEN. 

B. 

Ordinary  care — Definition — Question  of  fact. 

A  warehouseman  is  bound  to  exercise  ordinary  care  and  dili- 
gence in  respect  to  the  property  intrusted  with  hiiu,  wliicli 
may  be  defined  to  be  tliat  degree  of  care  which  men  of  conmioii 
prudence  in  general  exert  under  simihir  circumstances,  with 
regard  to  their  own  property  or  affairs.  Wliat  omission  or 
want  of  care  would  amount  to  ordinary  neglect  in  such  cases 
is,  as  a  general  rule,  rather  a  matter  of  fact  than  law ;  and  if  there 
be  any  evidence  to  sustain  the  verdict  of  the  jury,  it  will  not  be 
disturbed  by  an  appellate  court.  Sniith  v.  Simms,  51  How. 
Fr.  305;  Arent  v.  Squire,  1  Daly,  350;  Jones  v.  Morgan,  90  N.  Y. 
4;  Madan  v.  Covert,  13  J  &  S.  245;  Williamson  v.  N.  Y.,  N.  H. 
&  H.  R.  R.  Co.,  22  St.  Rep.  431 ;  Byrne  v.  Fargo,  36  Misc.  543; 
Schmidt  v.  Blood,  42  Amer.  Dec.  143;  Knapp  v.  Curtis  X'  Roof, 
9  Wend.  60;  Tittsworth  v.  Winnegar,  51  Barb.  148;  Foote  v. 
Storrs,  2  Barb.  326;  Schmidt  &  Wehh  v.  Blood  &  Green,  9  Wend. 
268;  Sckwerin  et  al.  v.  McKie  et  al.,51  N.  Y.  180;  Liverpool  d' 
Great  Western  Steam  Co.  v.  Suitter  et  al.,  17  Fed.  Rep.  695; 
Kaiser  v.  Latimer,  9  App.  Div.  36. 

Same — Prima  facie  case — Burden  of  proof — Presumption  re- 
hutted. 

A  prima  facie  case  is  made  against  a  warehouseman  when 
the  plaintiff  shows  delivery  to  the  warehouseman  and  the  re- 
turn of  the  goods  in  a  damaged  condition,  or  the  warehouse- 
man's failure  to  redeliver  upon  demand.  The  burden  of  proof 
is  then  upon  the  warehouseman  to  show  that  the  damage  or 
loss  was  not  a  result  of  a  breach  of  the  duty  owed  by  him  as 
warehouseman  to  the  plaintiff.  The  theory  that  one  is  pre- 
sumed to  have  done  his  duty  until  the  contrary  be  shown  does 
not  apply  to  a  case  where  a  warehouseman  delivors  goods  in- 
trusted to  his  care  in  a  damaged  condition,  or  fails  to  deliver 
them.  Such  action  on  the  part  of  the  warehouseman  rebuts 
this  presumption.  Arent  v.  Squire,  1  Daly,  347 ;  Reed  v.  Crowe 
et  al.,  13  Daly,  164;  Williamson  v.  .V.  Y.,  N.  H.  &  H.  R.  R.  Co., 


5t5t)  NEW  vuitK   niaisioNs. 

22  St.  Rep.  431;  Lynch  v.  Kluber,  20  Misc.  Rep.  601;  Draper  v. 
D.  ct  H.  C.  Co.,  118  N.  Y.  118. 

When  icarehouseman  liable  as  common  carrier — Assuming  to 
act  as  carrier — Termination  of  contract  oj  storage. 

A  warehouseman  had  stored  phiintiff's  goods  and  the  term 
for  which  they  were  stored  having  expired  .^he  thereupon  paid 
all  the  storage  charges  due  and  surrendered  the  contract.  Plain- 
tiff then  engaged  the  defendant  warehouseman  to  remove  the 
goods  from  his  warehouse  and  take  them  to  her  home.  Subse- 
quently and  while  in  the  warehouse  before  being  removed,  the 
goods  were  destroyed  by  fire.  Held  that  the  contract  of  stor- 
age had  terminated  and  that  the  defendant  was  liable  as  a  car- 
rier and  hence  as  an  insurer  of  the  goods.  Snelling  v.  Yetter,  25 
App.  Div.  590;  Wade  v.  Wheeler,  3  Lans.  201.  aff'd  47  N.  Y.  658. 

Delivery — Of  key. 

The  delivery  of  the  key  of  the  warehouse  containing  the 
goods  to  be  transferred  held  a  delivery  of  the  goods.  Wilkes 
V.  Ferris,  5  Johns.  335. 

Saine — To  consignee  without  authority — Warehouseman  liable 
for  freight  charges — Conversion. 

Where  a  common  carrier  stores  freight  with  a  warehouse- 
man, the  possession  of  the  warehouseman  becomes  that  of  the 
carrier,  and  if  the  warehouseman,  without  authority,  delivers 
the  goods  to  the  consignee,  he  is  liable  to  the  carrier  for  the 
amount  of  the  freight.  The  action  of  the  warehouseman  in 
this  respect  constitutes  a  conversion  of  the  goods.  Compton  v. 
Shaw,  1  Hun,  441 ;  Williard  v.  Bridge,  4  Barb.  361. 

Same — To  wife  on  forged  order. 

The  defendants  held  several  United  States  bonds  for  the 
plaintiff  as  his  bailee.  They  had  been  instructed  by  the  plain- 
tiff not  to  deliver  the  bonds  except  upon  his  written  order. 
It  appeared  that  the  wife  of  the  plaintiff  presented  an  order 
for  the  bonds  to  the  defendants,  purporting  to  be  signed  by  her 
husband  and  that  the  defendants  delivered  the  bonds  to  her. 
It  was  contended  in  behalf  of  the  defendants  that  independent 


NEW    YORK.  567 

of  any  agency  on  the  part  of  the  wife,  that  because  at  common 
law  a  wife's  possession  of  a  chattel  was  deeniod  the  possession 
of  her  husband,  the  dehvery  of  the  bonds  to  her  was  eciuivalent 
to  a  dehvery  to  the  plaintiff.  It  was  held  that  this  contention 
could  not  be  sustained;  that  the  bonds  had  been  obtained 
fraudulently  and  that  the  defendants  were  liable  therefor. 
Further  that  the  attempt  to  show  a  cross  liability  on  the  jiart 
of  the  plaintiff  for  the  fraud  committed  by  his  wife  could  not 
be  allowed  as  this  would  be  equivalent  to  enforcing  a  right  of 
action  against  the  plaintiff  alone  for  a  tort  committed  wholly 
by  his  wife.     Kowing  v.  Manly  et  al.,  49  N.  Y.  192. 

Same — Improper  delivery  to  husband — Conversion. 

A  large  quantity  of  jewelry  was  deposited  with  the  defend- 
ant by  the  plaintiff.  A  receipt  was  issued  to  her  in  wliich  it 
was  stated,  "This  receipt  must  be  returned  on  delivery  of  the 
goods,  and  all  liability  under  this  receipt  shall  cease  with  the 
delivery  of  such  package  and  contents  to  holder  hereof."  Sub- 
sequently the  defendant  delivered  the  jew-elry  to  the  husband 
of  the  plaintiff  without  the  return  of  the  receipt.  In  an  action 
for  the  value  thereof  it  was  held  that  the  defendant  was  liable 
therefor,  that  the  wrongful  delivery  of  the  property  to  the  hus- 
band of  the  plaintiff  constituted  a  conversion.  Markoe  v. 
Tiffany  &  Co.,  26  App.  Div.  95. 

Same — What  will  not  constitute — Evidence. 

In  an  action  against  a  warehouseman  to  recover  for  the  loss 
of  a  trunk  alleged  to  have  been  intrusted  to  Mm,  the  plain- 
tiff's evidence  showed  that  an  expressman  had  left  the  trunk 
at  the  defendant's  warehouse.  On  cross-examination  the  ex- 
pressman was  unable  to  say  that  he  had  deUvered  it  at  any 
particular  door  or  had  not  actually  left  it  in  the  street.  Further, 
he  did  not  recollect  whether  or  not  he  had  called  the  attention 
of  any  of  the  defendant's  employees  to  the  trunk.  No  receijn 
was  taken  upon  this  alleged  delivery  and  no  contract  with 
regard  to  the  storage  of  the  trunk  was  proven.  It  was  held 
that  this  evidence  w^as  clearly  insufficient  to  prove  a  deliver}' 
for  the  purpose  of  charging  warehouseman  upon  his  failure  to 
return  the  trunk  upon  plaintiff's  demand.    Testimony  given 


568  NEW    VoltK    DECISIONS. 

by  the  plaintiff  to  the  effect  that  an  agent  of  the  defendant  had 
admitted  nine  months  after  the  transaction  that  the  trunk  had 
been  received  was  held  improper,  that  such  testimony  formetl 
no  part  of  the  res  gestce  and  that  the  objection  to  the  reception 
of  tliis  testimony  was  well  taken.  Strong  v.  Union  Transfer 
&  S.  Co.,  11  Misc.  430. 

Cannot  deny  bailor's  title. 

A  warehouseman  having  received  property  from  the  plaintiff 
wall  not  be  permitted  to  defeat  his  right  to  its  return  by  at- 
tempting to  interpose  the  claim  of  ownership  in  a  third  person. 
Leoncini  v.  Post,  37  St.  Rep.  255;  Gruel  v,  Yetter,  27  Misc.  494; 
Mnllins  v.  Chickering,  110  N.  Y.  514;  Transportation  Co.  v. 
Barber,  56  N.  Y.  547;  Wheeler  v.  Lawson,  103  N.  Y.  40;  Frost  v. 
Mott,  34  N.  Y.  253. 

Conversion — Wrongful  sale  for  storage  udthout  notice  to  owner. 

A  warehouseman  received  goods  for  storage  and  three  years 
afterwards  sold  the  same,  without  notice  to  the  bailor  as  re- 
quired by  ch.  336,  Laws  of  1879.  Held  that  the  sale  made 
under  such  conditions  was  a  conversion  of  the  goods  for  which 
the  warehouseman  was  liable.     Todd  v.  Haeger,  12  St.  Rep.  633. 

Same — Refusal  to  deliver  to  true  oivner — Time  for  investigation 
as  to  oivner  ship. 

It  has  been  held  that  before  the  refusal  of  a  bailee  to  deliver 
goods  in  his  possession  to  one  who  claims  he  is  the  true  owner 
thereof,  will  amount  to  a  conversion,  tliat  such  bailee  if  he  has 
any  honest  doubts  as  to  the  ownership  of  the  property  is  enti- 
tled to  a  reasonable  time  in  which  to  investigate.  An  unqual- 
ified refusal  to  deliver  held  to  constitute  a  conversion.  Rogers 
V.  Wier,  34  N.  Y.  463. 

Warehouseman  guarantor  of  advances — Entitled  to  subrogation. 

"UTiere  a  third  party  makes  advances  on  goods  stored  with  a 
warehouseman  and  the  warehouseman  guarantees  the  pay- 
ment of  such  advances  and  finally  pays  the  same,  he  is  sub- 
rogated to  all  the  rights  of  such  third  party  in  the  goods.  Kil- 
patnck  V.  Dean  et  al,  3  N.  Y.  Supp.  60,  aff'd  15  Daly,  182. 


>JKW    VUKR.  569 

Same — Judgment  for  Hloragc  charges,  not  a  bar  lo  <in  (irtion  for 
conrersion. 

In  an  action  against  a  wareliouseman  for  conversion  of  cer- 
tain wood  stored  with  him,  it  was  held  that  a  judgment  pro- 
cured by  the  defendant  against  the  phuntiff  for  storage  charges 
was  not  a  bar  to  this  action,  the  record  of  tiie  {proceedings 
before  the  justice  who  tried  the  case  not  si  lowing  that  the  wood 
in  cjuestion  had  been  dehvered  to  the  ownei'.  Merrill  v.  Peirano, 
10  App.  Div.  563. 

Change  of  proprietorship  of  ivarehouse — Request  upon  depositor 
to  withdraw  his  goods — Effect — Market  rate  of  storage — Duty  of 
warehouseman. 

The  defendant  had  stored  a  quantity  of  wood  in  a  warehouse 
and  had  received  therefor  a  receipt  in  which  the  rate  of  storage 
per  month  was  stated,  it  being  the  market  rate  therefor.  Sul)- 
sequently  the  warehouse  was  taken  ))ossession  of  by  the  plain- 
tiff who  assumed  all  outstanding  contracts  of  storage.  There- 
after, plaintifT  notified  the  defendant  that  he  nmst  withdraw 
the  wood  from  the  warehouse  or  else  pay  a  greatly  advanced 
rate.  Defendants  refused  to  comply  with  this  request  and  al- 
lowed the  wood  to  remain  in  the  warehouse,  offering  to  pay  the 
market  rate  for  the  storage  thereof.  In  an  action  to  sell  the 
wood  pursuant  to  its  lien  for  unpaid  storage,  it  was  held  that 
after  the  refusal  of  the  defendant  to  remove  the  wood  as  re- 
quested, that  this  terminated  the  contract  of  storage  but  that 
the  plaintifT  would  be  entitled  only  to  recover  whatcA'er  the 
market  rate  for  such  storage  might  be  shown  to  be  at  that  time 
and  not  the  exorbitant  charge  claimed  by  the  plaintiff.  Further 
held  that  plaintiff  was  not  bound  to  retain  the  property  after 
the  contract  of  storage  was  terminated  by  his  notice  but  that 
he  would  have  been  justified  in  removing  it  after  that  date  and 
depositing  it  in  a  warehouse  at  the  risk  and  exj^ense  of  the 
owners  subject  to  any  lien  he  might  have  prior  to  the  removal, 
Hazeltine  et  al.  v.  Weld  et  al.,  73  N.  Y.  156. 

Same— Several  liability— Holding  in  official  capacity  no  de- 
fense. 

The  defendant  took  possession  of  and  operated  a  warehouse 


.")70  NEW    VOlMv    DECISIONS. 

ill  which  the  phiintiff's  goods  were  stored,  and  during  the  term 
of  such  storage  the  goods  were  injured.  It  was  held  that  he 
was  severally  liable  to  the  owner  of  the  goods  although  the 
warehouse  company  wliich  had  previously  operated  the  w^are- 
house  was  a  defendant  also.  As  the  injury  hai)pened  while 
he  was  in  possession  he  was  Uable  for  the  same.  The  defend- 
ant attempted  to  show  that  he  was  not  liable  on  the  ground 
that  he  held  and  conducted  the  warehouse  in  an  official  capacity. 
The  plaintiff  denied  that  she  had  any  notice  or  knowledge  of 
such  representative  capacity.  It  was  held  therefore  that 
this  defense  could  not  be  maintained.  Kaufman  v.  Peoples 
Cold  Storage,  10  Misc.  553;  Kaufman  v,  Morgan,  10  Misc. 
554. 

Sajne — What  sufficient  to  make  prima  facie  case. 

The  defendant  company  took  possession  of  a  warehouse  form- 
erly operated  by  another  firm  and  notified  all  the  depositors 
that  the  customers  would  in  no  way  be  affected  by  the  change 
in  ownership.  The  plaintiff  had  deposited  goods  in  the  ware- 
house prior  to  this  change,  but  upon  receiving  the  goods  from 
the  warehouseman  found  that  they  were  damaged.  In  an  ac- 
tion for  the  value  thereof,  it'  was  held  that  the  plaintiff  made 
out  a  jyrima  facie  case  against  the  defendant  by  showing  de- 
livery to  the  former  owner  and  the  damaged  condition  when 
received,  and  that  it  w^as  error  to  dismiss  the  case  upon  this 
showing.  Isler  et  al.  v.  Lijids  Co.,  67  N.  Y.  Supp.  1072;  Smith 
V.  Railroad  Co.,  43  Barb.  225,  aff'd  41  N.  Y.  620. 

Evidence — Demand— Burden  of  proof. 

In  an  action  against  a  warehouseman  for  failure  to  deliver 
the  goods  upon  demand,  it  was  held  that  the  plaintiff  made 
out  a  prima  facie  case  by  showing  the  delivery  to  the  ware- 
houseman and  such  failure  to  redeliver.  The  court  held  that 
the  warehouseman  is  liable  in  such  a  case  unless  he  can  account 
for  the  loss  of  the  goods  by  showing  that  they  were  taken  from 
his  possession  without  any  fault  on  his  part.  Coleman  v.  Liv- 
ingston, 4  J.  &  S.  32;  Burnell  v.  .V.  Y.  &  C.  R.  R.  Co.,  45  N.  Y. 
184.     But  see  Clafiin  et  al.  v.  Meyer,  75  N.  Y.  260. 


NEW    YORK. 

Claim  of  title  by  a  third  per.son— Warehouseman  not  entitlec 
equitable  relief — Interpleader. 

Tlie  c()in])I;unant,  a  warehouse  coiupaiiy,  (ilcl  ;,  |,il]  in  (•(|uity 
alloginp;  that  various  persons  claimetl  title  to  a  hirge  (|uaiitity 
of  arms  stored  with  it  and  also  that  there  were  charges  for 
storage  due  for  which  the  coiniilaiiiant  had  its  lien  thereon. 
The  bill  prayed  that  all  parties  thereto  be  restrained  fmn, 
further  proceedings  and  that  they  be  conijx-lied  to  interjjlead. 
The  court  held  that  the  motion  of  the  complainant  for  an  in- 
junction pendente  lite  must  be  denied  on  the  ground  that  ho 
had  no  right  to  maintain  an  action  of  interpleader  as  lie  must 
defend  himself  at  law,  the  question  at  issue  being  one  purely 
of  the  legal  title  to  the  property.  Bartlett  et  al.  v.  His  Imperial 
Majesty,  The  Sultan,  etc.,  23  Fed.  Rep.  257 ;Crawshay  v.  Thorn- 
ton, 2  Mylne  &  C.  1. 

6. 

Government  bonded  warehouse— Effect  of  statute— Burden  of 
proof. 

In  an  action  against  a  government  bonded  warehouseman  foi- 
the  value  of  certain  cigars,  alleged  to  have  been  lost  while  in 
his  custody,  it  was  contended  on  behalf  of  the  defendant  that 
the  goods  deposited  with  him  were  at  the  owner's  risk  undei- 
the  terms  of  the  Act  of  Congress  pertaining  to  bonded  warehouse- 
men (10  U.  S.  Stat,  at  L.  p.  270).  It  was  held  that  the  pro- 
vision of  this  statute  stating  that  the  goods  were  hekl  at  the 
owner's  risk  appUed  only  to  the  United  States  government  and 
not  to  the  warehouseman,  it  not  being  the  intention  of  congress 
to  change  thereby  the  liability  of  bonded  warehousemen  for 
the  exercise  of  due  and  ordinary  care.  Schwerin  et  al.  \.  McKie 
et  al. ,  51  N.Y.  ISO. 

Same — Statute  requiring  withdraival  within  one  year — Effect  of 
such  withdrawal  when  negotiable  warehouse  receipt  outstan/iing — 
One  taking  receipt  after  the  expiration  of  the  year  not  a  bona  fide 
holder. 

The  defendants,  who  conducted  a  bonded  warehouse,  tleliv- 
ered  to  a  depositor  a  negotiable  receipt  for  a  large  quantity 
of  whiskey  which  was  stored  therein.  In  the  receipt  it  was 
stated  that  the  w^hiskey  was  deliverable  to  the  bearer  only 


;')~'2  NEW    VOlilv    DECISIONS. 

after  the  payment  in  cash  of  the  short  price,  tlie  government 
tax  and  storage  charges.  On  the  back  of  the  receipt  there  was 
a  copy  of  the  statutes  of  Kentucky  by  which  such  receipts 
were  made  negotiable  and  transferabk^  by  indorsement  in 
blank  with  the  same  liabihty  attaching  to  the  negotiation  of 
bills  of  exchange.  The  defendants  duly  gave  a  bond  as  required 
by  the  Revised  Statutes  of  the  United  States  condition(>d  that 
they  would  pay  the  tax  on  the  whiskey  as  specified  on  the  entry, 
before  removal  from  the  distillery  warehouse  and  within  one 
year  from  the  date  of  the  bond.  A  year  thereafter  the  de- 
fendants shipped  the  whiskey  to  the  depositor.  It  subse- 
quently appeared  that  this  depositor  had  indorsed  the  receipt 
after  the  expiration  of  the  year  to  the  plaintiff  who  l^rought  an 
action  for  conversion  against  the  defendant  warehouseman. 
Upon  the  above  stated  facts,  it  was  held  that  the  warehouse- 
man was  not  hable;  that  the  plaintiff  when  he  took  the  ware- 
house receipt  was  in  a  similar  position  to  one  who  accepts  a 
bill  of  exchange  after  maturity,  that  is,  he  took  with  all  the 
equities  ;  that  the  warehouseman  had  no  right  nor  power 
under  the  Revised  Statutes  of  the  United  States  to  hold  the 
whiskey  after  the  expiration  of  the  year  and  that  the  plaintiff 
was  chargeable  with  knowledge  of  this  statute.  -An  examina- 
tion of  the  receipt  would  have  shown  the  plaintiff  that  a  year 
had  expired  since  the  issuance  thereof  and  that,  therefore,  it 
could  not  then  be  lawfully  in  the  warehouse  of  the  defendant. 
Van  Schoonhoven  v.  Curley  et  a/.,  86  N.  Y.  187. 

Same — Representation  on  warehouse  receipt  that  liquor  in  "free 
warehouse." 

If  a  warehouse  receipt  state  that  the  liquor  represented 
thereby  is  stored  in  a  "free  warehouse"  whereas  in  fact  the 
government  tax  has  not  been  paid,  such  warehouseman  will  be 
liable  for  the  amount  of  such  tax  to  an  innocent  holder  of  the 
receipt.  First  Nat.  Bank  v.  Dean  et  al,  137  N.  Y.  110,  aff'g 
Same  v.  Same,  16  N.  Y.  Supp.  107. 

Same— Sureties  on  bond— Discharge  by  postponement  of  sale 
— Principal  liable. 

By  the  Revised  Statutes  of   the  United  States  (12  Stat,  at  L. 


y.E\\   V()I;k.  578 

p.  293)  gootlis  left  in  a  rnitcd  States  govornniont  bonded  ware- 
house are  deemed  to  be  abandoned  after  three  3'ears,  if  all  taxes 
and  jK'nalties  due  thereon  are  not  paid.  The  icgulalioiis  of  the 
treasury  department  provide  that  such  goods  shall  be  sold  011 
a  certain  day  after  the  expiration  of  said  three  years.  Where 
the  secretary  of  the  treasury  issued  an  ordei-  postj)oning  such 
sale  and  afterward  the  United  States  brought  an  action  against 
the  sureties  on  the  bond  for  the  recovery  of  the  deficit  existing 
after  the  sale,  it  was  held  that  by  such  j)ostponement  the  sureties 
were  released.  Such  j^ostponement  of  sale  luid  pi-cciscly  the 
same  result  as  an  extension  of  credit  would  have  in  a  case  of 
other  sureties.  A  surety  is  entitled  to  have  the  sale  take  [)lace 
on  the  day  specified  in  the  treasury  regulations  ;  a  postponement 
thereof  will  increase  the  amount  for  which  he  is  lial)le  and  for 
which  he  must  look  to  his  principal,  ^^'ith  regard  to  the  prin- 
cipal, the  case  is  different.  He  is  liable  for  the  whole  duties 
as  import(M'  without  limitation  of  time  and  irrespective  of  the 
goods  held  as  security.  United  States  wDe  Vis.ser,  10  Fed.  Rep. 
642. 

H. 

Storage  charges — Contract  an  entirety — Charges  not  earned  until 
contract  fully  performed. 

The  plaintiff,  a  warehouseman,  agreed  with  the  defendant 
to  store  a  number  of  barrels  of  wine  for  a  definite  period  of 
time  for  a  stipulated  price  per  barrel.  Prior  to  the  expiration 
of  such  time,  and  while  the  plaintiff  still  had  ;i  large  nuinlx-r 
of  the  barrels  in  his  possession,  the  warehouse  and  contents 
were  destroyed  by  fire  without  negligence  or  fault  on  his  part. 
In  an  action  for  the  storage  charges,  it  was  held  that  the  j)lain- 
tiff  could  not  recover  because  the  contract  was  an  entirety  ;  and 
as  he  had  not  fully  performed  the  same  he  was  ncjt  entitled  to 
any  part  of  his  storage  charges.  It  appeared  from  the  evidence 
that  the  defendant  had  paid  a  certain  sum  in  cash  on  account 
of  such  storage  charges  at  the  time  the  agreement  was  made. 
It  was  held  that  although  the  defendant  in  his  answer  did  not 
claim  the  return  of  this  sum  that,  nevertheless,  the  jilaintifT 
was  not  entitled  to  retain  the  same.  Archer  v.  McDonald  ct  aL, 
36  Hun,  194. 


574  NEW    YORK    DECISIONS. 

Same — No  implication  to  reduce  storage  charges  on  account  of 
insura  nee — Custom. 

The  plaintiffs,  warehousemen,  sued  the  defendant  for  storage 
charges  due  on  account  of  sugar  stored.  The  defendant  ad- 
mitted the  storage  and  the  rate  thereof  and  set  up  an  imphed 
agreement,  based  upon  custom,  by  which  he  claimed  a  set-off 
against  such  charges  on  account  of  sums  paid  by  him  for  insur- 
ance. The  defendant  alleged  that  it  was  a  custom  in  that 
vicinity  to  allow  to  depositors,  in  reduction  to  their  storage 
charges,  a  certain  sum  for  insurance  when  the  goods  were  stored 
in  a  warehouse  in  which  goods  of  a  fibrous  nature  were  stored. 
It  was  held  that  the  defendant  had  failed  to  establish  any  legal 
right  to  the  counterclaim  as  alleged.  Woodruff  et  al.  v.  Acosta, 
11  St.  Rep.  286. 

Advances  by  warehouseman  to  depositor — Usury — Intent  a  ques- 
tion for  the  jury. 

It  appeared  that  the  plaintiff's,  who  were  warehousemen, 
loaned  money  to  the  defendant  who  had  fleposited  goods  with 
them  and  secured  the  payment  of  the  notes  given  therefor  by 
the  warehouse  receipts.  The  warehouseman  agreed  to  procure 
the  money  from  another  source  by  the  use  of  his  name,  it  being 
further  agreed  that  he  was  to  receive  compensation  for  these 
services.  It  was  held  that  although  the  facts  showed  that  the 
plaintiffs'  compensation  amounted  to  a  usurious  rate  of  interest 
that,  nevertheless,  he  was  entitled  to  compensation  for  his 
services  in  procuring  the  money  for  the  defendant  although  it 
appeared  that  the  money  advanced  was  in  reality  money  be- 
longing to  the  plaintiff  himself ;  and  further  held,  that  it  was  a 
question  of  fact  for  the  jury  to  determine  whether  this  form  of 
transaction  was  gone  through  with  for  the  purpose  of  covering 
a  usurious  transaction.     Linds  et  al.  v.  Grant,  37  St.  Rep.  60. 

Same — Action  for  freight — Custom — Apparent  good  order. 

By  the  custom  of  warehousemen,  known  and  established,  they 
have  the  right  to  receive  goods  from  a  carrier,  if  in  apparent 
good  order,  and  advance  to  the  latter  his  reasonable  charges 
for  the  carriage  of  them,  and  to  hold  them  subject  to  the  lien 


NEW    YORK.  57.') 

of  the  carrier  for  the  amount  thus  advanced;  and  if  deUvcred 
to  the  owner  without  immediate  payment,  at  the  owner's  re- 
quest, a  suit  may  be  maintained  to  recover  the  .iiiKnint  ad- 
vanced to  the  carrier,  and  if  the  goods  have  been  injur('<l  by 
the  carrier,  which  injury  is  not  ai)i)ai-ent  or  known  to  the  ware- 
houseman, before  or  at  the  time  of  his  receiving  the  goods,  the 
owner  must  look  to  the  carrier  for  his  chimages,  and  cannot 
recoupe  the  same  in  an  action  by  the  warehouseman.  Sage  ct  al. 
v.  Gittner  et  al.,  11  Barb.  120;  Western  Tranayoriation  Co.  v. 
Barber,  56  N.  Y.  544. 

Sale  for  storage  charges — Agreement. 

The  right  given  to  warehouseman  (Laws,  1883,  ch.  421)  to 
sell  goods  for  storage  charges  when  one  year's  storage  is  due, 
may  be  altered  by  special  agreement  between  the  parties.  State 
Trust  Co.  V.  Casino  Co.,  5  App.  Div.  381. 

Lien — Given  only  to  ivarehousemen. 

The  lien  of  a  warehouseman  for  his  charges  is  governed  by 
ch.  526  of  the  Laws  of  1885  (see  also  ch.  418,  Laws  of  1897) 
by  the  terms  of  which  act,  in  order  to  be  entitled  to  a  lien,  a 
person  must  be  engaged  regularly  in  the  business  of  storing 
goods,  wares  and  merchandise  for  hire.  A  person  not  so  en- 
gaged does  not  come  within  the  terms  of  the  statute.  Merritt 
V.  Peirano,  10  App.  Div.  563 ;  In  re  Kelly,  18  Fed.  Rep.  528. 

Same — Must  sell  goods  within  a  reasonable  time  after  expira- 
tion of  the  year. 

After  there  has  been  a  default  in  the  payment  of  storage 
charges  and  one  year  has  elapsed,  a  warehouseman  must  sell  the 
goods  for  such  charges  within  a  reasonable  time.  He  has  no 
right  to  keep  the  goods  for  an  indefinite  period  allowing  his 
charges  to  increase.  Although  the  statute  is  not  mandatory 
and  does  not  require  the  warehouseman  absolutely  to  sell  at 
the  expiration  of  the  year,  nevertheless  the  rights  and  duties 
of  the  contracting  parties  are  fixed  by  fundamental  principles 
of  law  W'hich  do  not  depend  upon  the  statute.  Therefore,  a 
warehouseman   cannot   unroasonablv  neglect   to  avail   himself 


57B  NEW    YORK    DECISIONS. 

of  his  rights  of  sale  after  the  same  has  accrued.     Morgan  v. 
Murtha,  18  Misc.  438,  reversing  Same  v.  Same,  17  Misc.  292. 

Same — Right  to  retain  undelivered  portion  of  goods  for  storage 
due  on  entire  lot. 

A  warehouseman  has  a  Hen  upon  goods  remaining  in  store, 
which  are  part  of  a  large  quantity  of  goods  originally  stored, 
for  the  storage  charges  due  upon  all  of  the  goods.  Schmidt  & 
Webb  V.  Blood  &  Green,  9  Wend.  268. 

Same — General  and  not  specific — May  hold  goods  for  all  legal 
demands  for  storage  against  the  owner — Sec.  1.  ch.  526,  Laws  of 
1885,  construed. 

By  sec.  1,  ch.  526,  of  the  Laws  of  1885,  it  is  provided  that 
a  warehouseman  or  person  lawfully  engaged  in  the  business  of 
storing  property  for  hire  shall  have  a  lien  thereon  for  his  storage 
charges  and  for  moneys  advanced  by  him  for  cartage,  labor, 
weighing  and  coopering  paid  on  goods  deposited  and  stored 
with  him,  the  statute  extenrls  such  lien  to  all  legal  demands  for 
the  above  which  he  may  have  against  the  oivner  thereof.  It 
was  held  that  the  warehouseman  has  a  general  Hen  on  any  and 
all  goods  which  he  may  have  in  his  possession  for  any  and  all 
legal  charges  which  he  may  have  against  the  owner  of  such 
goods  for  storage  or  for  money  advanced  for  the  purposes  speci- 
fied in  the  statute.  Stallman  &  Fulton  v.  Kimherly  &  Johnson, 
53  Hun,  531,  aff' d  121  N.  Y.  393,  this  case  followed  in  Kaufman 
v.  Leonard  et  a!.,  decided  in  Wayne  County  Circuit  Court  (Michi- 
gan), May,  1903,  not  yet  reported  ;  Baumann  v.  Post,  26  Abb. 
N.  C.  134.  See  note  on  liens  and  the  effect  of  the  act  in  23 
Abb.  N.  C.  245. 

Same— Warehouseman's  lien  subordinate  to  rights  of  mortgagee 
under  chattel  mortgage. 

Where  one  mortgaged  his  furniture,  the  mortgage  ha\ang  been 
duly  recorded  as  required  by  statute,  and  had  made  default 
in  the  payment  thereof,  and,  further  had  removed  the 
furniture  and  stored  the  same  contrary  to  the  terms  of  the 
mortgage,  it  was  held,  in  an  action  by  the  mortgagee  against  the 
warehouseman,  that  the  lien  of  the  former  was  superior  to  that 


NEW    VOKK.  577 

of  the  latter.  It  was  contended  in  behalf  of  the  warehouseman 
that  by  sec.  1,  ch.  526,  of  the  Laws  of  1885,  warehousemen 
were  given  a  specific  lien  upon  goods  stored  with  them.  The 
court  stated  that  it  was  true  that  a  specific  lien  was  given  by  the 
act  and  that  a  general  lien  was  also  given  thereby,  but  that  there 
was  nothing  in  the  statute  which  was  intended  to  give  a  ware- 
houseman ;.  lien  upon  goods  belonging  to  another,  stored  by  a 
stranger  in  fraud  of  the  true  owner's  rights.  Baumann  v.  Post, 
26  Abb.  N.  C.  134  ;  Eisler  v.  Union  Transfer  and  Storage  Co.] 
16  Daly,  456  ;  Baumann  v.  Jefferson,  4  Misc.  147;  Banfield  v 
Haeger,  13  J.  &  S.  428. 

Same— When  warehouseman's  lien  superior  to  rights  of  mort- 
gagee under  chattel  mortgage. 

Where  the  mortgagee  under  a  chattel  mortgage  had  failed  to 
refile  the  mortgage  within  thirty  days  prior  to  the  expiration 
of  the  first  year,  and  the  goods  were  stored  with  a  warehouse- 
man, it  was  held  that  the  lien  of  the  latter  for  his  storage  charges 
was  superior  to  that  of  the  mortgagee.  State  T.  Co.  v.  Casino 
Co.  et  al,  5  App.  Div.  381. 

Same— Same— Chattel  mortgage  must  be  filed  within  thirty  days 
before  expiration  of  year. 

Where  a  warehouseman  held  goods  on  storage  which  had  been 
mortgaged  and  the  mortgage  had  been  recorded  forty-eight  (48) 
days  before  expiration  of  the  year  and  not  witliin  thirty  (30)  days, 
as  required  by  the  statute,  it  was  held  that  such  refiling  was 
absolutely  nugatory  and  that  the  lien  of  the  warehouseman  for 
his  storage  charges  was  superior  to  that  of  the  mortgagee,  and 
that  the  goods  could  be  sold  by  the  former  for  such  charges. 
Industrial  Loan  Association  v.  Saul,  34  Misc.  188. 

Same — Purchaser  taking  with  notice  thereof. 

A  warehouseman,  having  in  his  possession  a  large  quantity 
of  oil  upon  which  he  had  made  advances,  was  instructed  by  the 
general  owner  to  deliver  the  same  to  a  purchaser  thereof.  The 
warehouseman  was  to  receive  the  payment  from  the  purchaser 
out  of  which  he  was  to  first  pay  all  of  his  advances.  The  pur- 
chaser received  and  paid  for  part  of  the  goods  and  when  the 
37 


578  NEAV    VOKK    DIVISIONS. 

balance  was  sent  to  him  stated  that  as  the  general  owner  was 
indebted  to  him,  he  had  paid  himself  out  of  the  price  of  the 
goods  and  held  the  balance  subject  to  the  order  of  the  ware- 
houseman. In  an  action  to  recover  the  full  price  of  the  goods, 
it  was  held  that  the  warehouseman  was  entitled  thereto;  that 
the  purchaser  took  with  constructive  if  not  actual  notice  of  his 
lien  for  advances  and  charges  and  that  he  was  bound  to  pay 
the  same.     Carnngton  et  al.  v.  Ward  et  al,  71  N.  Y.  360. 

I. 

Commingling  of  goods — Valid  sale  of  a  part  thereof  mthoiU 
segregation. 

A  party,  owning  a  large  quantity  of  grain  which  was  stored 
in  mass  in  Ms  warehouse,  sold  a  portion  thereof  and  gave  to  the 
purchaser  his  warehouse  receipt  acknowledging  that  he  held, 
subject  to  the  order  of  the  vendee,  the  number  of  bushels  of 
grain  purchased.  The  vendor  owned  other  grain  in  the  ware- 
house with  which  the  grain  sold  was  mingled  and  there  was  no 
separation  made  at  the  time  of  the  sale  nor  was  it  intended 
by  the  parties  that  any  such  separation  should  be  made.  It 
was  held  that  this  was  a  valid  sale  of  the  grain  represented  by 
such  receipt.  Kimberly  et  al.  v.  Patchin,  19  N.  Y.  330.  See 
also  Gardiner  v.  Snydam,  7  N.  Y.  357. 

Same — Contract  an  executory  one — Above  case  distinguished. 

The  defendants,  ha%dng  a  large  quantity  of  oil  in  their  ware- 
house, agreed  with  the  plaintiff  for  the  sale  thereof  and  deliv- 
ered to  him  a  bill  of  sale  in  which  it  was  stated  that  they  had 
received  payment  therefor  by  a  note  at  three  months.  The 
bill  also  stated  that  the  oil  was  to  be  delivered  when  called 
for,  subject  to  his  charge  for  storage,  and  the  quality  of  the 
oil  to  be  like  a  sample  which  was  then  delivered.  The  plaintiffs 
paid  the  note  when  it  became  due  and  subsequently  demanded 
the  oil  which  when  offered  proved  to  be  of  an  inferior  quality 
and  twelve  hundred  gallons  less  than  the  amount  called  for. 
It  appeared  that  the  loss  was  due  to  leakage  and  that  the  de- 
terioration in  quality  was  due  to  the  same  cause.  There  was  no 
separation  of  the  oil  from  that  of  a  large  quantity  stored  nor 
was  there  any  request  for  such  separation.     It  was  contended 


NEW    YORK.  679 

in  behalf  of  the  defendant  that  the  doctrine  of  the  case  of  Kijn- 
herly  cl  al.  v.  Patchin,  19  N.  Y.  330,  appHed;  that  the  contract 
was  one  of  sale  ;  that  the  plaintiff  was  liable  for  the  deterioration 
and  loss  after  the  title  had  vested  in  him.  It  was  held  that  the 
present  case  was  distinguished  from  Kimherly  v.  Patchin,  in 
that  there  was  a  delivery  of  a  receipt  in  the  latter  case,  in  lieu 
of  a  manual  delivery  of  the  grain,  and  that  there  was  no  such 
attempt  in  the  present  case  to  constitute  the  defendant  bailee 
for  the  plaintiff.     Foote  et  al.  v.  Marsh  et  ai,  51  N.  Y.  288. 

Substitution  of  other  propej'ty — A  contract  for  such  substitution 
held  not  contrary  to  any  statute  of  this  state. 

The  owner  of  certain  loales  of  burlap  stored  the  same  with 
a  warehouseman  and  took  negotiable  receipts  therefor.  At  the 
time  he  requested  that  the  warehouseman  refrain  from  placing 
on  the  receipts  any  identification  marks  for  the  reason  that  he 
would  subsequently  desire  to  substitute  other  bales  of  burlaj) 
for  those  then  deposited.  In  an  action  brought  by  the  pledgee 
of  the  receipts  against  the  owner  of  the  burlap,  it  was  held  that 
the  agreement  providing  for  the  substitution  of  other  burlap 
for  that  originally  deposited  was  a  valid  one,  that  no  statute 
was  violated  thereby  and  that  there  was  no  apparent  reason 
for  deeming  it  against  public  policy  for  a  warehouseman  to 
make  such  an  agreement  for  the  substitution  of  goods.  New 
York  Security  &  Trust  Co.  v.  Lipman,  91  Hun,  554. 

L. 

Replevin — Improper  delivery  to  defendant  in  replevin  suit — 
Warehousernan  liable  for. 

A  warehouse  compan}^,  pursuant  to  an  order  obtained  under 
ch.  633  of  the  Laws  of  1895,  delivered  to  the  sheriff  proj)- 
erty  which  had  been  formerly  stored  with  it  by  the  defenilant 
in  an  action  of  replevin.  It  appeared  that  prior  to  the  ser\'ice 
of  the  order  on  the  warehouseman  that  it  had  issued  a  receipt 
to  a  third  party  as  the  owner  of  the  goods  in  accordance  with 
an  order  of  the  defendant.  It  was  held  that  the  delivery  to 
the  sheriff  of  the  goods  under  such  circumstances  attempted 
to  deprive  such  third  party  of  his  jiioiierty  without  due  process 
of  law;  that  the  warehouse  company  was  liable  to  such  third 


580  NEW    YUKK    DECISIONS. 

party  for  this  wrongful  delivery  for  it  was  its  duty  to  have  noti- 
fied him  of  this  order  so  that  he  might  protect  the  goods  him- 
self. The  order  in  the  case  was  for  the  delivery  to  the  sheriff 
of  any  property  belonging  to  the  defendant  and  if  the  ware- 
houseman had  at  the  time  no  property  belonging  to  such  de- 
fendant the  order  became  a  nullity  and  might  safely  have  been 
disregarded.     Whitman  et  al.  v.  Kleimann  et  al.,  24  Misc.  554. 

M. 

Pledge — Unauthorized  sale  by  pledgee,  conversion. 

Where  a  pledgee  of  property  sells  the  same  without  the  au- 
thority of  the  pledgor,  such  sale  constitutes  a  conversion  and 
the  transaction  operates  as  a  payment  of  the  debt  to  the  extent 
of  the  value  of  the  property.  If  such  value  exceeds  the  debt 
the  pledgees  are  liable  for  the  market  value  of  the  property 
converted,  less  the  amount  of.  the  debt.  Kilpatrick  v.  Dean 
et  al,  3  N.  Y.  Supp.  60,  aff'd  4  N.  Y.  Supp.  708. 

Same — A  factor  may  pledge. 

By  the  Factor's  Act  of  this  state,  a  factor  in  possession  of 
the  goods  and  having  the  necessary  muniments  of  title  may 
pledge  the  same  as  validly  as  the  owner  thereof.  Brooks  v. 
Hanover  Nat.  Bank,  26  Fed.  Rep.  301. 

N. 

Injury  to  goods — Liability  for  when  goods  subsequently  de- 
stroyed. 

A  warehouseman  is  liable  for  the  negligent  injury  of  goods 
stored  with  him  for  hire,  though  it  appear  that  after  the  hap- 
pening of  the  injury,  the  goods  were  destroyed  without  his 
fault,  and  that  they  must  have  been  so  destroyed  even  if  no 
damage  had  previously  occurred.     Powers  v.  Mitchell,  3  Hill  545. 

Loss  by  fire — Negligence  must  be  proven — Burden  of  proof  al- 
ways on  plaintiff. 

Where  an  action  is  brought  against  a  warehouseman  for  the 
value  of  grain  stored  with  him,  and  the  defendant  shows  that 
the  destruction  of  the  goods  was  caused  by  fire,  the  burden  of 
proof  remains  ujion  the  plaintiff  to  show  that  the  hre  was  caused 


NEW    YORK.  581 

by  the  negligence  of  the  defenchint.  While  it  is  true  that  a  de- 
mand upon  a  warehouseman  ff)r  goods  stored  with  him  met  by 
an  unexplained  r(>fusal  constitutes  a  prima  facie  case  of  conver- 
sion against  him,  this  rule  does  not  apply  where  the  warehouse- 
man alleges  that  the  goods  were  destroyed  by  fire,  for  if  the 
fire  was  not  due  to  his  negligence  or  fault  he  is  not  liable  for 
the  loss  resulting  therefrom  and  the  plaintiff  having  alleged 
negligence  in  his  complaint  is  bound  to  prove  the  same.  Liberty 
Ins.  Co.  V.  Central  Vt.  R.  R.  Co.  et  al,  19  App.  Div.  509;  Clafiin 
V.  Meyer,  75  N.  Y.  260;  Lamh  v.  Camden  &  Amboy  R.  R.  (0  T. 
Co.,  46  N.  Y.  271;  Grieve  v.  A^.  Y.  C.  &  H.  R.  R.  R.  Co.,  25 
App.  Div.  518. 

Same — Negligence  question  for  the  jury. 

A  common  carrier  w^as  sued  for  the  destruction  of  property 
which  he  held  in  the  capacity  of  warehouseman.  It  appeared 
that  the  building  in  which  the  property  was  stored  was  de- 
stroyed by  fire  and,  in  spite  of  the  fact  that  the  plaintiff  offered 
testimony  to  prove  negligence  on  the  part  of  the  defendant,  the 
trial  court  granted  a  nonsuit.  The  evidence  as  to  the  negli- 
gence of  the  defendant  was  as  follows:  It  appeared  that  the 
defendant  had  an  office  in  one  corner  of  the  building  wliich 
was  used  as  a  warehouse  and  that  in  such  office  there  was  a 
small  stove ;  that  the  woodwork  in  close  proximity  to  the  stove 
was  charred  and  that  on  a  previous  occasion  the  office  had 
caught  fire  from  a  live  coal  which  had  dro])ped  out  of  the  stove. 
Further,  that  an  employee  of  the  defendant  had  requested  his 
superiors  to  have  a  new  stove  placed  in  the  office  stating  that 
the  stove  there  w^as  dangerous  and  that  this  request  had  not 
been  complied  with,  and  finally  that  the  fire  originated  in  the 
office  near  the  stove.  It  was  held  on  api)(':il  that  those  facts 
should  have  gone  to  the  jury  to  determine  whether  or  not  the 
defendant  was  guilty  of  negligence.  Grieve  v.  N.  Y.  C.  &  H. 
R.  R.  R.  Co.,  25  App.  Div.  518. 

Loss  by  theft — Watching  entrance  to  warehouse — Prrcaidion.^ — 
Questions  for  the  jury. 

In  an  action  against  a  warehouseman,  for  the  loss  of  a  large 
quantity  of  cigars,  the  defendant  alleged  that    the  cigars   had 


582  NEAV    VOUlv    DECISIONS. 

been  stolen  from  him  without  liis  faiih  and  offered  testimony 
to  show  that  he  used  due  care  in  properly  watching  the  en- 
trances to  his  warehouse  in  the  day-time,  and  in  having  them 
securely  fastened  at  night.  The  plaintiff  offered  testimony 
to  the  effect  that  two  witnesses  had  gone  into  the  warehouse 
during  the  day-time  without  being  detected  by  the  defendant 
or  his  employees.  Upon  motion  of  the  defendant  a  verdict 
was  given  for  him.  On  appeal  a  new  trial  was  ordered  on  the 
ground  that  the  plaintiff  had  a  right  to  go  to  the  jury  for  their 
verdict  on  the  question  as  to  whether  or  not  the  guard  main- 
tained by  the  defendant  was  sufficient.  Madan  v.  Covert  et  at., 
10  J.  &S.  135. 

Same — Negligence — Burden  of  proof. 

A  warehouseman  is  not  responsible  for  goods  intrusted  to 
him,  stolen  or  embezzled  by  his  storekeeper  or  servant,  unless 
negligence  be  shown  ;  and  the  onus  of  showing  negligence  lies 
upon  the  owner.  Schmidt  v.  Blood,  9  Wend.  268  ;  Claflin  v. 
Myer,  75  N.  Y.  260,  rev'g  Savie  v.  Saiyie,  11  J.  &  S.  1;  Grossman 
v.  Fargo,  6  Hun,  310;  Weed  v.  Barney,  45  N.  Y.  344;  Draper  v. 
Del.  &  Hud.  Canal  Co.,  118  N.  Y.  118. 

Negligence — A  questio7i  of  fact — Presumption  from  nature  of 
transaction. 

In  an  action  against  a  warehouseman,  for  the  recovery  of 
the  value  of  goods  deposited  with  him,  the  defendant  attempted 
to  excuse  his  non-delivery  by  showing  that  the  goods  were  de- 
stroyed in  the  collapse  of  his  warehouse  while  the  same  was 
being  repaired  after  a  fire.  It  was  held  that,  generally  speak- 
ing, the  burden  of  proof  was  on  the  plaintiff  to  show  negligence 
on  the  part  of  the  defendant  but  that  there  are  some  instances 
where  an  accident  is  shown  that  negligence  will  be  presumed 
from  the  nature  of  the  accident.  That  loss  may  result  from 
fires  and  thefts  and  the  warehouseman  be  free  from  all  negli- 
gence but  in  absence  of  earthquake  or  other  act  of  God,  the 
collapse  of  a  warehouse  presupposes  negligence  for  which  the 
defendant  will  be  liable.  Kaiser  v.  Latimer,  40  App.  Div. 
149. 


NEW    VOKK.  683 

Same — Burden  of  proof  on  plaintiff  throughout. 

In  an  action  against  a  warehouseman  for  failure  to  deliver 
on  demand  property  intrusted  to  him,  it  was  held  to  be  well 
settled  that  the  burden  of  proof  rests  on  the  plaintilT  through- 
out the  entire  case.  It  is  true  that  when  the  plaintiff  has  made 
out  a  prima  facie  case  by  proving  the  contract  of  storage,  the 
receipt  of  the  goods  and  failure  to  deliver  that  the  warehouse- 
man is  liable  unless  he  can  show  that  the  damage  resulted  from 
acts  on  his  part  which  were  in  no  wise  negligent  and  for  which 
he  was  not  responsible.  The  plaintiff,  thereupon,  must  resume 
his  proof  and  the  burden  of  establishing,  by  a  preponderance 
of  evidence,  that  the  defendant  has  been  negligent.  Mautner 
et  at.  V.  Terminal  Warehouse  Co.,  25  Misc.  729;  Liberty  Ins.  Co. 
V.  Central  Vt.  R.  R.  Co.  et  ah,  19  App.  Div.  509  ;Clafiin  v.  Meyer, 
75  N.  Y.  260;  Schmidt  &  Webb  v.  Blood  &  Green,  9  Wend.  260. 

Same — What  the  defendant  must  prove. 

In  the  case  of  failure  on  the  part  of  a  warehouseman  to  de- 
liver upon  demand  goods  intrusted  to  him,  it  was  Jield  that 
the  burden  of  proof  was  upon  him  to  establish  that  he  was  with- 
out fault  after  demand  and  refusal  and  that  he  was  bound  to 
show  that  he  exercised  ordinary  care  in  keeping  and  presen'ing 
the  property  until  called  for.  Bank  of  Oswego  v.  Doyle  et  al., 
91  N.  Y.  32,  citing  Schwerin  v.  McKie,  5  Robt.  404,  aff'd  51 
N.  Y.  180;  Burnell  v.  A^.  Y.  C.  R.  R.  Co.,  45  N.  Y.  184. 

Same — Same — Defendant  must  give  some  account  of  property. 

A  defendant,  liable  as  a  warehouseman,  must  give  some  ac- 
count of  the  property  intrusted  to  his  care,  which  he  fails  to 
deliver  on  demand,  before  he  can  cast  upon  the  plaintiff  the 
burden  of  proving  him  negUgent.     Bush  v.  Miller,  13  Barb.  481. 

Same — Misdelivery — Conversion. 

An  action  of  trover  was  brought  against  a  warehouseman 
for  his  failure  to  deliver  property  intrusted  to  him,  on  demand 
of  the  owner.  The  case  was  tried  and  submitted  to  the  jury 
upon  the  assumption  that  the  property  had  been  taken  from 
the  possession  of  the  defendant  by  some  person  other  than  the 
owner.     The  jury  found  that  the  property  had  been  delivered 


584  NEW  yoi;k  decisions. 

to  such  person  by  the  mistake  or  nejihgence  of  the  defendant; 
that  is,  by  his  act,  not  by  his  mere  omission.  It  was  held  that 
this  constituted  a  conversion  of  the  property  for  which  the 
defendant  was  liable.  Williard  v.  Bridge,  4  Barb.  361 ;  Pashinska 
V.  Sell,  20  Misc.  665. 

Same — Same — Liability. 

Warehousemen  are  not  only  liable  for  losses  occasioned  by 
their  negligence  but  also  for  those  which  arise  from  innocent 
mistakes  in  the  delivery  of  goods  to  persons  not  entitled  to 
receive  them.     Bank  of  Oswego  v.  Doyle  et  al.,  91  N.  Y.  32. 

Cold  storage — Fruit  ruined  by  temperature  becoming  too  low — 
Not  entitled  to  storage  charges — Liability  for  damages. 

The  plaintiff,  a  warehouse  company,  brought  an  action  for 
storage  charges  against  the  defendant  who  had  stored  a  quan- 
tity of  fruit  in  the  former's  cold  storage  rooms.  The  defendant 
counterclaimed,  alleging  and  proving  that  the  fruit  was  dam- 
aged and  rendered  useless  while  being  kept  at  too  low  a  tem- 
perature and  judgment  was  rendered  for  the  defendant  in  amount 
of  his  damages.  On  appeal  this  judgment  was  affirmed,  the 
court  holding  that  it  appeared  clearly  from  the  testimony  that 
the  plaintiff  was  to  store  the  fruit  at  a  temperature  ranging 
from  thirty-five  to  forty  degrees  and  that  by  his  failure  to  do 
this  he  became  liable  to  the  defendant  in  damages  which  the 
latter  had  sustained  by  reason  of  this  breach  of  contract.  Green- 
wich Warehouse  Co.  v.  Maxfield,  8  Misc.  308. 

Same — When  owner  has  access  to  cold  storage  rooms — Knowl- 
edge of  their  temperature. 

The  plaintifT  stored  a  large  quantity  of  eggs  in  the  cold  stor- 
age warehouse  of  the  defendant,  and  it  appeared  from  the 
testimony  that  there  was  no  express  contract  of  storage  made 
between  the  parties.  It  also  appeared  that  the  storage  was  to 
be  temporary  and  tliat  the  plaintiff  at  all  times  had  access  to 
the  warehouse  where  the  eggs  were  deposited  and  from  time  to 
time  inspected  the  eggs  and  handled  them,  thus  being  possessed 
of  the  information,  or  means  of  information,  as  to  the  daily 
temperature  of  the  storage  rooms.     Further  that  a  large  quan- 


NEW  vr>RK.  685 

tity  of  the  eggs  amounting  in  value  to  several  hundred  dollars 
were  ruined  owing  to  a  rise  in  tenij)erature  in  the  rooms  in 
which  they  were  stored.  It  was  held  under  such  eireumstances 
that  the  defendant  was  not  liable  and  that  the  plaintiffs  acted 
on  their  own  judgment  as  to  the  capabilities  of  the  warehouse 
in  the  matter  of  temperature.  The  court  further  held  th  it  the 
plaintiffs  had  failed  to  make  out  any  contract  by  which  the 
defendant  agreed  to  keep  the  temperature  of  the  rooms  at  a 
uniform  or  at  a  certain  minimum  degree.  Sunderland  el  al.  v. 
Albany  C.  S.  &  W.  Co.,  55  App.  Div.  212. 

Same — Meaning  of  term  defined. 

The  phrase  "cold  storage"  used  in  a  warehouse  receipt  is 
indefinite  and  ambiguous  in  its  meaning  where  tlie  receipt 
simply  states  that  the  goods  are  to  be  kept  in  "cold  storage." 
Where,  therefore,  the  degree  of  temperature  at  which  the  goods 
were  to  be  kept  was  of  highest  importance  in  the  matter  of  their 
preservation,  evidence  would  be  received  to  show  that  this 
term  meant  below  freezing,  or,  that  it  may  have  meant  a  tem- 
perature cold  enough  to  preserve  the  goods.  Behrman  v.  Linde, 
47  Hun,  530. 

Evidence — Receivable  to  show  special  value  of  lost  property. 

In  an  action  against  a  warehouseman  for  damages  for  the 
loss  of  certain  sheet  music  stored  with  him,  it  was  held  that 
evidence  showing  a  special  value  of  the  sheet  music  to  the 
plaintiff,  in  that  it  contained  notes  thereon  made  by  her  hus- 
band, was  properly  received.     Leoncini  v.  Post,  37  St.  Rep.  255. 

Same — Instructions  to  jury — Where  alleged  to  be  stolen  the  loss 
by  such  theft  must  be  established. 

The  defendants,  who  were  liable  as  warehousemen,  had  a 
large  quantity  of  cigars  stored  with  them,  and  ui)on  failure  to 
deliver  upon  demand,  the  plaintiff  instituted  suit  against  them. 
The  defendant  attempted  to  show  that  the  cigars  in  (jUosticMi 
had  been  stolen  from  him  without  his  fault.  The  court  in- 
structed the  jury  that  the  defendant  must  prove  that  the  loss 
was  immediately  connected  with  the  theft,  and,  further,  that  in 
spite  of  such  theft  he  had  exercised  ordinary  care,  or  that  the 


686  NEW    VOHK    DECISIONS, 

loss  occurred  without  negligence  on  the  part  of  the  defendant. 
Schiverin  et  al.  v.  McKie  et  ah,  51  N.  Y.  180;  Claflin  et  al.  v. 
Meyer,  75  N.  Y.  260,  rev'g  Same  v.  Same,  11  J.  &  S.  1;  Madan 
V.  Covert  et  al,  10  J.  &  S.  135;  Williamsoji  v.  N.  Y.,  N.  H.  &  H. 
Ry.  Co.,  22  St.  Rep.  431;  Leoncini  v.  Post,  37  St.  Rep.  255; 
Lichenstein  v.  Jarvis,  31  App.  Div.  33;  Abecasis  v.  Gra?/,  11 
J.  &  S.  573;  Oderkirk  v.  Faryo,  61  Hun,  418;  Liberty  Ins.  Co.  v. 
Central  Vt.  R.  R.  Co.,  19  App.  Div.  509. 

0. 

Measure  of  damages. 

Where  a  warehouseman  converts  to  his  own  use  the  property 
intrusted  to  his  care  by  an  unauthorized  sale  of  the  same,  the 
measure  of  damages  is  the  value  of  the  property  at  the  time 
of  its  conversion  less  any  sum  which  may  be  pi'operly  due  the 
warehouseman  for  charges  or  advances.  Kilpatrick  v.  Dean 
et  al,  3  N.  Y.  Supp.  60,  aff'd  15  Daly,  182. 

Same — Interest  allowable  from  date  of  demand. 

A  warehouseman  had  failed  to  deliver  to  his  depositor  certain 
cigars  stored  with  him  upon  demand  being  made  therefor.  In 
the  trial  of  the  action,  the  warehouseman  was  found  to  be 
liable  for  their  loss.  In  regard  to  the  claim  of  the  plaintiff 
for  interest  on  the  value  of  the  goods  from  the  date  of  demand, 
the  court  said:  "The  cigars  in  question  were  the  property  of 
the  plaintiffs,  and  when  they  demanded  them  they  were  en- 
titled to  one  of  three  things:  To  the  goods,  the  pay  for  them, 
or  a  valid  excuse  for  not  delivering  them.  The  defendants 
having  failed  to  do  either;  and  having  thus  occasioned  the  plain- 
tiffs the  loss  of  interest  upon  the  value  of  their  property  with- 
out a  valid  excuse,  they  cannot  justly  complain  of  being  charged 
with  interest."     Schwerin  et  al.  v.  McKie  et  al,  51  N.  Y.  180. 

Same — Purchase  price  does  not  always  govern. 

In  ascertaining  the  amount  of  damages  resulting  from  the 
loss  of  goods  stored  with  a  bailee,  the  purchase  price  is  not  al- 
ways a  criterion  of  the  value  thereof.  There  may  be  circum- 
stances which  would  render  such  a  criterion  manifestly  unfair. 


NHAV    VOltK.  587 

hence  other  evidence  will  be  received.     Jonc^  v.  Munjan,  24 
Hun,  372;  aff'd  90  N.  Y.  4;  Leoncini  v.  Post,  37  St.  Rep.  255. 

P. 

Warranty — Representations  that  warehouse  is  frost  proof- 
Opinion. 

In  an  action  against  a  warehouseman  to  recover  the  value  of 
certain  bulbs  alleged  to  have  been  ruined  by  frost  while  stored, 
the  evidence  adduced  by  the  plaintiff,  although  not  conclusive, 
was  to  the  effect  that  the  defendant  had  stated  that  his  ware- 
house was  free  and  safe  from  frost,  that  the  bulbs  would  keep 
therein  and  tliat  the  warehouse  was  as  frost  proof  as  brick,  iron 
and  mortar  could  reasonably  be  expected  to  make  it.  It  was 
held  that  the  charge  to  the  jury  to  the  effect  that  if  defendant 
stated  as  a  matter  of  fact  that  his  warehouse  was  as  frost  proof 
as  brick,  iron  and  mortar  could  reasonably  be  expected  to  make 
it,  and  that  as  said  warehouse  was  not  so  frost  proof,  that  the 
plaintiffs  were  entitled  to  recover,  was  error.  That  even  though 
evidence  was  conclusive  that  the  defendant  had  made  such  a 
statement  that  it  would  have  been  at  most  merely  an  expres- 
sion of  opinion  as  to  what  could  be  expected  of  brick,  iron  and 
mortar,  and  that  it  was  not  a  warranty  that  all  goods  stored 
therein  would  not  be  injured  by  frost.  Hallock  et  al.  v.  Mallett, 
23  R.  &  S.  265. 

Same — Advertisement  containing  false  statements  as  to  the  con- 
struction of  the  warehouse — Liability  of  warehouseman  therefor. 

The  plaintiff  brought  an  action  against  the  defendant,  a  ware- 
houseman, for  the  loss  of  her  goods  by  fire  while  stored.  Testi- 
mony showed  that  she  had  been  induced  to  store  her  gontls 
in  this  warehouse  by  representations  contained  in  a  circular 
issued  by  the  warehouseman  which  stated  among  other  things 
that  "no  expense  has  been  spared  in  supplying  light,  ventila- 
tion and  protection  against  the  spread  of  fire,  the  exterior 
being  fireproof,  and  interior  being  divided  off  by  heavy  brick 
walls,  iron  doors,"  etc.  The  evidence  showed  that  the  ware- 
house had  caught  fire  from  an  adjacent  buildiiiir  and  that  the 
fire  had  been  communicated  to  the  warehouse  and  its  contents 
through  wooden  window  frames.     The  plaintiff  referred  to  the 


588  NEW    YORK    DECISIONS. 

Act  of  1874,  ch.  547,  sec.  5,  in  that  it  required  certain  struc- 
tures, among  which  are  warehouses,  to  have  doors,  bUnds  and 
shutters  made  of  fireproof  material  on  every  window  and  open- 
ing above  the  first  story.  It  was  held  that  in  view  of  the  evi- 
dence that  the  window  frames  of  the  warehouse  were  wooden; 
that  at  the  outside  of  the  windows  there  were  no  shutters  and 
that  the  cornices  were  of  wood  covered  with  tin,  the  state- 
ments contained  in  the  circular  were  false.  That  the  meaning 
of  the  term  fireproof  was  well  known  and  that  it  conveyed 
no  other  idea  than  that  the  material  of  which  an  article  was 
constructed  was  incombustible.  That  the  statement  in  regard 
to  the  construction  of  his  warehouse  was  not  an  expression  of 
opinion  for  which  he  would  not  be  Hable  but  was  a  statement 
of  fact.  That  being  false  he  was  liable  for  the  consequences 
therefor,  being  chargeable  with  knowledge  of  the  conditions 
about  his  warehouse.  Hickey  v.  Morrell,  102  N.  Y.  454,  rev'g 
Same  v.  Same,  12  Daly,  482.     See  Gruel  v.  Yetter,  26  Misc.  851. 

Warehouse  receipt— When  goods  not  actually  in  store— Act 
construed. 

Where  a  receipt  was  issued  and  all  of  the  goods  represented 
thereby  were  not  actually  in  store  and  the  receipt  was  trans- 
ferred or  pledged,  it  was  Md  that  the  receipt  did  not  thereby 
become  void  and  that  the  person  taking  the  same,  either  as 
purchaser  or  pledgee,  took  title  to  all  goods  actually  in  store  at 
the  time  of  the  transaction.  McCombie  et  at.  v.  Spader,  1  Hun, 
193. 

Same — Same — Receipt  issued  to  one  not  real  owner — Purchaser 
of  receipt  with  notice. 

A  warehouseman  issued  a  receipt  individually  to  a  repre- 
sentative of  a  firm  to  which  certain  goods  belonged,  but  such 
goods  had  not  at  the  time  of  issuance  of  the  receipt  been  received 
in  store  by  the  warehouseman.  The  representatives  of  the  firm 
sold  the  receipt  and  the  purchaser  subsequently  sold  the  same 
for  value  to  the  warehouseman.  The  property  represented  by 
the  receipt  had,  in  the  meantime,  been  purchased  by  one  who 
had  no  notice  of  these  transactions.     It  was  held  that  the  pur- 


^E^v   vuKK.  oy<) 

chaser  of  the  goods  took  a  good  title  thereto  and  that  il»c  re- 
ceipt which  was  issued  when  the-  goods  were  not  actually  in 
store  and  to  one  who  was  not  in  reality  the  owner  of  the  gijods 
and  had  no  authority  to  so  act  for  th(!  owner,  was  void  as  to 
the  purchaser  of  the  goods  in  gootl  faith.  Delaware,  L.  A  W. 
R.  R.  Co.  V.  Corwith  et  al,  37  St.  Rep.  728. 

Same — Rcjumt  to  deliver — Idenlijicalion. 

Household  furniture  was  stored  with  the  defendant  ware- 
houseman but  no  receipt  given  at  the  time  of  the  storage.  Sub- 
sequently the  depositor  executed  a  bill  of  sale  to  the  plaintiff 
for  the  furniture  and  sent  an  agent  with  the  vendee  to  the  ware- 
house. At  this  time,  the  defendant  warehouseman  gave  to 
such  agent  a  receipt  in  the  name  of  the  vend(^r  in  which  it  was 
stated  that  the  furniture  would  be  delivered  only  upon  the 
written  order  of  the  depositor  or  proper  identification.  The 
agent  of  the  vendor,  who  was  present  at  the  warehouse  with 
the  vendee,  identified  such  vendee  but  the  warehouseman  re- 
fused to  deliver  without  written  order  of  the  vendor.  Held 
that  the  refusal  was  unjustifiable,  that  aside  from  the  identifi- 
cation that  there  was  considerable  doubt  whether  or  not  the 
clauses  referring  to  delivery  of  the  goods  upon  the  written  order 
and  to  identification  were  not  merely  notices  and  not  part  of 
the  contract.  Therefore,  the  dismissal  of  the  complaint  by  the 
trial  court  was  reversed  on  appeal.  Willner  v.  Morrell,  S  J.  it  S. 
222. 

Same — Imjylication  that  corn  sold  is  marketable  com — Parol 
evidence  inadmissible. 

The  defendant  contracted  to  sell  a  quantity  of  corn  to  another 
and  for  the  purposes  of  delivery  deposited  the  same  in  a  ware- 
house and  took  therefor  a  receipt  in  his  own  name.  Held  that 
in  spite  of  the  fact  that  the  defendant  by  this  transaction  in- 
tended to  deliver  the  corn  to  the  purchaser,  that,  in  reality, 
the  title  to  the  corn  remained  in  him.  Further,  that  a  contract 
to  sell  a  quantity  of  corn  means  marketable  corn  and  that 
parol  evidence  of  conversations  between  the  parties  is  not  ad- 
missible to  vary  the  terms  of  the  warehouse  receipt  issued  to 
the  defendant.     Peck  v.  Armstrong,  38  Barb.  215. 


590  NEW    YORK    DECISIONS. 

Same — Valid  tender  may  be  made  by. 

A  tender  of  the  warehouse  receipt,  and  an  offer  to  pay  charges 
due  thereon,  is  a  vaUd  tender  to  dehver  property  under  a  con- 
tract of  sale.  Hayden  v.  Demets,  53  N.  Y.  426,  aff'd  2  J.  & 
S.  344. 

Same — Warehouseman  not  bound  by  description  contained  in 
the  receipt. 

A  warehouseman  received  in  storage  a  number  of  barrels  said 
to  contain  Portland  cement.  He  issued  receipts  therefor  in 
which  it  was  stated  that  he  had  stored  in  his  warehouse  a 
number  of  barrels  containing  such  cement.  It  afterwards  ap- 
peared that  the  barrels  did  not  contain  cement  of  the  grade 
mentioned  but  were  filled  with  a  sandy  substance  which  was 
practically  worthless.  The  warehouse  receipt  had  been  pledged 
to  secure  a  loan  and  the  plaintiff  had  obtained  possession  thereof 
from  the  pledgee  after  having  paid  the  note  for  which  the  receipt 
was  given,  he  being  the  guarantor  thereon.  It  was  contended 
in  behalf  of  the  plaintiff  that  if  the  goods  were  not  Portland 
cement  as  represented  in  the  receipts  that  such  receipts  were 
untruthful  and  therefore  issued  in  violation  of  the  first  section 
of  the  Factors  Act  of  1858  as  amended  by  that  of  1866  (ch.  326, 
Laws  of  1858  ;  ch.  440,  Laws  of  1866).  It  was  held  that  this 
act  did  not  apply  to  such  a  case;  further  that  the  character  of 
the  representation  made  by  the  warehouseman  on  the  receipt 
was  nothing  more  than  that  he  had  actually  received  a  certain 
number  of  barrels  of  what  purported  to  be  Portland  cement 
packed  as  such  cement  was  usually  packed  and  bearing  the 
outward  indicia  of  such  article;  that  the  statement  as  to  the 
contents  of  the  barrels  received  was  in  no  sense  a  warranty  by 
the  defendant  that  such  contents  were  actually  as  described, 
and  that  the  fault  lies  wholly  with  the  plaintiff,  who  placed 
a  degree  of  faith  in  the  corn^ctness  of  description  contained 
in  the  receipt  which  was  totally  unwarranted  from  the 
nature  of  the  transaction  and  for  which  the  defendant  ought 
not  to  be  held  responsible.  Deaii  et  al.  v.  Driggs,  137  N.  Y. 
274,  distinguishing  First  Nat.  Bank  of  Chicago  v.  Dean  et  ah, 
137  N.  Y.  110;  Myer  v.  Peck,  28  N.  Y.  590;  Armour  v.  Ry.  Co., 
65  N.  Y.  101 ;  Miller  v.  Hannibal  &  St.  Jo.  Ry.,  24  Hun,  607. 


NKW     VUKK. 


591 


^^  Same-Estoppel-Statement  in  receipt  that  liquor  is  stored  m 
"free  warehouse"  binding  on  warehouseman. 

The  plaintiff  became  the  holder  of  a  negotiable  warehouse 
receipt  lor  a  quantity  of  brandy.     Printed  on  the  l„p  of  the 
receipt  was  a  list  of  warehouses  operated  by  the  defendant. 
The  list  also  stated  which  were  "free  warehouses"  and  which 
were  bonded,  and  it  furtlier  appeared  that  the  brandy  repre- 
sented by  this  receipt  was  stored  in  one  of  the  warehouses  which 
was  stated  to  be  free.     It  appeared  that  in  the  parlance  of  this 
business  the  term  "free  warehouse "  means  one  not  bonded  or 
where  liquor  is  stored  upon  which  the  government  tax  has  been 
paid.      It  afterward  appeared   that    in  fact  the  brandy  repre- 
sented  by  the  receipt  was  stored  in  a  bonded  warehouse  and 
that  it  could  not  be  withdrawn  except  upon  the  payment  of  the 
government  tax    thereon.     Held  that  the  plaintiff  was  a  bona 
fide  holder  of  the  receipt  within  the  meaning  of  the  warehouse 
laws  of  the  state,  and  that  he  was  entitled  to  the  possession 
of  the  brandy  upon  the  payment  of  storage  charges  only  and 
that  the  defendant  was  bound  to  pay  the  government  tax  due 
thereon,  being  estopped  by  the  statement  on  the  receipt  that 
the  brandy  was  in  a  free  warehouse.     First  Nat.  Bank  of  Chicago 
v.Deanetal,  137  N.  Y.  110. 

Same — Negotiability. 

Warehouse  receipts  are  made  negotiable  in  tiiis  state  by 
statute.  The  indorsement  and  transfer  thereof  vests  the  title 
to  the  merchandise  represented  in  the  transferee.  Brooks  v. 
Hanover  Nat.  Bank,  26  Fed.  Rep.  301. 

Same — Act  construed — Bona  fide  holder. 

It  was  the  intention  of  the  legislature  by  the  act  of  1858 
(sec.  6,  ch.  326,  Laws  of  1858)  that  warehouse  receipts,  upon 
which  the  word  non-negotiable  was  not  plainly  written  or 
stamped,  were  to  have  certain  negotialile  (jualities  imparted 
to  them.  Held  that  it  followed  from  such  act  that  a  bona  fide 
transfer,  in  the  manner  specified  in  this  law  with  intent  to  trans- 
fer the  title  to  the  property,  vests  such  title  in  the  transferee 
together  with  all  the  remedies  of    the  trnnsferror  against  the 


592  NEW    YOliK    DECISIONS. 

warehouseman  for  failure  to  make  due  delivery.  Whitlock  et 
al.  V.  Hay,  58  N.Y.  484  ;  Brooks  v.  Hanover  Nat.  Bank,  26.  Fed. 
Rep.  301. 

Same — Negotiability — Not  negotiable  the  same  as  bills  and  notes. 

The  negotiability  of  a  warehouse  receipt  is  not  the  same  as 
that  of  a  promissory  note  or  bill  of  exchange.  By  the  in- 
dorsement and  delivery  of  such  a  receipt  the  indorsee  for  value 
is  entitled  to  hold  the  property  represented  thereby  under  the 
conditions  stated  in  the  warehouse  law  of  this  state.  Unless 
there  has  been  fraud  or  neglect  in  the  issuance  of  the  receipt 
the  holder  is  entitled  to  no  more  than  the  original  property 
deposited.     Dean  et  al.  v.  Di-iggs,  137  N.  Y.  274. 

Same — As  collateral — Liability  of  pledgee  for  storage  charges — 
Must  take  possession  of  the  goods — What  constitutes  possession  a 
question  of  fact. 

Where  a  warehouse  receipt  has  been  used  as  collateral  security 
to  secure  the  payment  of  a  note  and  the  pledgee  surrenders  the 
receipt  to  one  who  was  guarantor  on  the  note,  and  who  paid 
the  same,  it  was  held  that  by  thus  obtaining  possession  of  the 
receipt  such  guarantor  did  not  thereby  become  liable  for  the 
payment  of  storage  charges,  and  that  in  order  to  hold  him  so 
hable  it  would  be  necessary  to  show  that  he  did  some  act  from 
which  it  could  be  shown  that  he  took  possession  of  the  goods. 
It  appeared  from  the  evidence  that  one  in  the  employ  of  such 
holder  of  the  receipt  had  sent  his  clerk  to  the  warehouse  to 
examine  the  property.  In  reply  to  an  inciuiry  made  by  an  em- 
ployee of  the  warehouseman  asking  whether  or  not  a  bill  should 
be  sent  for  the  storage  charges,  such  clerk  stated  that  they  had 
better  send  such  a  bill.  It  was  further  held  that  this  evidence 
was  not  sufficient  upon  which  to  direct  the  verdict  and  that 
the  question  was  one  of  fact  as  to  whether  or  not  the  holder  of 
the  receipt  had  taken  possession  of  the  goods,  and  that  the 
person  who  becomes  the  holder  of  a  warehouse  receipt  as  col- 
lateral security  does  not  by  reason  of  his  having  possession  of 
the  receipt  become  bound  for  the  storage  charges  due  upon 
the  property.  He  has  a  qualified  title  to  the  property  and  if 
he  so  elects  may  reduce  the  property  to  possession    by  the 


payment  of  storage  charges.     Drujys  v.  Dean,  107  N.  Y.   121, 
rev'g  Same  v.  Same,  37  App.  Uiv.  GoO. 

Same — Same — Effect  of  subditntion  of  other  goods. 

The  plaintiff  trust  company  brought  an  action  against  the 
defendant  on  certain  warehouse  receipts  which  iiad  been  j^ledged 
with  it  as  collateral  security  for  the  payment  of  a  loan.  One 
of  the  defendants,  the  owner  of  the  goods,  had  stored  tlie  same 
in  a  warehouse  and  had  agreed  with  the  prcjprietor  thereof  that- 
the  negotiable  receipts  which  were  to  be  issued  therefor  should 
contain  no  marks  by  which  the  particular  goods  stcjred  could 
be  identified,  the  object  being  that  the  owner  desired  to  sub- 
stitute other  goods  which  he  subsequently  did.  At  the  time 
of  the  default  in  the  payment  of  the  note  for  which  the  ware- 
house receipt  was  pledged,  it  appeared  that  the  quantity  of 
goods  remaining  in  the  warehouse  and  belonging  to  the  original 
owner  was  less  than  that  called  for  by  the  receipt  and  that  the 
full  amount  was  made  up  from  goods  of  a  similar  character 
which  had  been  intrusted  to  the  owner  as  factor  and  wliich 
he  had  stored  along  with  his  own  goods;  that  subsequent  to 
this  transaction  the  warehouseman  issued  one  receipt  cover- 
ing all  of  the  goods  then  standing  in  the  name  of  the  owner, 
which  receipt  was  taken  by  the  plaintiff  as  collateral  in  lieu  of 
the  former  receipts  held  by  it.  It  was  held  that  the  agreement 
between  the  warehouseman  and  the  owner  as  to  the  sul)stitu- 
tion  of  other  goods  was  a  lawful  and  proper  agreement;  that 
the  pledge  made  of  the  goods  which  were  held  as  factor  was 
valid  under  the  Factors  Act  of  this  state,  anrl  that  the  plain- 
tiff was  entitled  to  recover  for  all  loss  and  advances  made  l)y 
it  against  all  of  the  property  stored.  Xeir  York  Security  & 
Trust  Co.  V.  Lipman,  91  Hun,  554.  See  also  BIyndenstein  et  al. 
V.  New  York  S.  &  T.  Co.,  15  C.  U.  A.  14;  Same  v.  Same,  59  Fed. 
Rep.  12. 

Same — Delivery  of  goods  without  return  of  receipt — Section  633 
of  the  penal  code  construed. 

An  owner  of  goods  shipped  the  same  to  a  bank,  care  f)f  the 
plaintiff  warehouseman.  When  the  goods  wore  rccoivc.l  by  the 
plaintiff  they  were  stored  and  a  receipt  issued  to  the  owner 
38 


594  NEW    Y(3KK    DECISIONS. 

therefor.  The  owner  thereupon  attached  to  the  receipt  a  draft 
drawn  on  the  defendant  at  ninety  days'  sight,  which  draft  was 
duly  accepted  and  the  owner  discounted  the  same  at  the  bank. 
The  defendant  was  to  have  possession  of  the  goods  upon  pay- 
ment of  the  draft  and  the  delivery  to  him  of  the  receipt.  The 
defendant,  after  accepting  the  draft,  had  taken  possession  of 
the  goods,  without  authority  from  the  plaintiff.  The  defend- 
ant failing  to  pay  the  draft  when  due,  the  plaintiff  paid  the  same 
and  procured  the  warehouse  receipt.  In  an  action  for  the 
amount  of  the  draft,  it  was  contended  that  the  plaintiff  was  not 
entitled  to  recover  on  the  ground  that  he  had  parted  with  the 
custody  of  the  goods  in  violation  of  sec.  633  of  the  Penal  Code 
which  forbids  warehousemen  to  deliver  property  unless  the  re- 
ceipt be  surrendered.  It  was  held  that  the  finding  of  the  jury 
that  the  goods  w^ere  taken  from  the  plaintiff  by  the  defendant, 
without  permission  of  the  former,  was  conclusive  and  that  in 
such  a  case  the  above  section  of  the  Penal  Code  does  not  apply. 
Burnham  v.  Cape  Vincent  Seed  Co.,  142  N.  Y.  169,  aff'g  49  St. 
Rep.  918. 

Same — Same — When  ivarehou semen  liable. 

In  an  action  by  the  plaintiff  bank  against  a  warehouseman, 
to  recover  the  value  of  a  quantity  of  wheat  and  oats  repre- 
sented by  certain  warehouse  receipts,  the  following  procedure 
was  the  custom  between  the  parties:  A  dealer  in  grain  would 
store  the  same  with  the  defendant  and  procure  therefor  his  re- 
ceipt; when  he  desired  to  sell  the  same  would  draw  his  check  on 
the  plaintiff  bank  and  attach  his  receipt  thereto,  the  plaintiff 
thereupon  honoring  the  receipt.  While  the  receipt  was  still 
in  the  hands  of  the  plaintiff  bank,  the  warehouseman  would  de- 
liver the  grain  to  such  dealer  who  would  in  turn  deliver  it 
to  the  railroad  for  shipment.  The  railroad  would  then  issue 
its  bill  of  lading  to  the  dealer  for  the  grain  received  and  the 
dealer  would  then  present  the  bill  of  lading  to  the  bank,  obtain 
the  warehouse  receipts  and  deliver  them  to  the  defendant.  In 
the  instance  from  which  the  cause  of  action  arose,  the  dealer, 
although  he  had  received  the  bill  of  lading  from  the  railroad 
company,  failed  to  deliver  it  to  the  plaintiff.  It  was  contended 
in  behalf  of  the  defendant  that  there  was  a  waiver  on  the  part 


NEW    YORK.  595 

of  the  plaintiff  of  the  benefits  of  the  warehouse  act.  It  was  held 
that  there  was  not  sufficient  evidence  in  supjjort  of  such  waiver 
to  warrant  the  submission  thereof  to  the  jury;  and  that  if  the 
defendant  saw  fit  to  intrust  tlie  bill  of  lading'  to  the  dealer,  he 
did  so  at  his  peril;  finally  that  the  arrangement  on  the  part  of 
the  plaintiff  to  hold  the  receipt  until  it  had  received  the  bill  of 
lading  did  not  amount  to  a  waiver  of  the  provisions  of  the  stat- 
ute.    First  Nat.  Bank  of  Penn  Yan  v.  Bnien,  23  Weekly  Dig.  90. 

Same— Receipt  of  grain  and  issuance  of  warehouse  receipt  xinth- 
out  notice  of  claim  for  advances — Warehouseman  not  liable. 

One  engaged  regularly  in  the  business  of  a  warehouseman 
issued  a  receipt  for  grain  stored  with  him  in  the  name  of  the 
master  of  the  vessel  who  delivered  the  grain.  At  the  time  of 
the  issuance  of  this  receipt  the  warehouseman  had  no  notice  of 
any  advances  made  against  the  grain.  It  appeared  that  the 
grain  had  been  shipped  to  the  order  of  the  consignor,  care  of 
the  consignee,  the  former's  broker.  The  master  of  the  vessel 
indorsed  the  receipt  to  the  broker  who  had  previously  pledged 
the  bill  of  lading  in  order  to  obtain  funds  with  which  to  pay 
the  draft  attached  thereto,  being  for  the  price  of  the  grain. 
The  broker  afterward  negotiated  the  receipt  to  several  parties 
who  brought  an  action  against  the  warehouseman  for  the  con- 
version of  the  grain.  It  was  held  that  the  transaction  was  one 
of  mere  bailment  and  imposed  no  further  duty  upon  the  de- 
fendant than  to  restore  the  property  to  his  bailor  when  no 
intervening  rights  of  others  had  been  asserted.  The  defend- 
ant had  no  notice  of  the  transaction  with  the  bill  of  lading 
and  there  w^ere  no  facts  brought  to  his  attention  from  which 
he  could  be  charged  with  such  notice.  Hazard  v.  Abel.  Prcst.. 
etc.,  1  Sheld.  364. 

Same — Delivery  upon,  withoid  notice  of  claim. 

A  warehouseman  received  a  large  quantity  of  grain  and, 
under  instructions  from  the  consignor,  issued  a  receipt  in  the 
name  of  the  consignee.  It  appeared  that  the  consignee,  who 
was  a  purchaser  of  the  grain,  had  not  paid  therefor  and.  in 
fact,  was  at  the  time  insolvent,  but  the  defendant  warehou.'^e- 
man  had  no  notice  of  this  nor  any  notice  that  his  consignor 


596  NENV    VOKK    DECISIONS. 

had  any  claim  against  the  consignee.  The  consignee  pledged 
the  receipt  to  a  third  party  and  secured  advances  thereon. 
In  an  action  brought  against  the  warehouseman,  it  was  held 
that  the  issuance  of  the  receipt  by  him  under  the  above  stated 
facts  was  proper  and  that  he  was  in  no  wise  liable  for  claims 
of  the  consignor  against  the  goods  of  which  he  had  no  notice 
and  that  the  pledge  thereof  to  the  third  party  was  a  valid 
pledge.  Hoyt  v.  Baker,  15  Abb.  Pr.  (N.  S.)  405;  Hazard  v. 
Abel,  15  Abb.  Pr.  (N.  S.)  413. 

Same — Receipt  issued  by  superintendent  to  owner  of  factory  not 
a  warehouse  receipt. 

The  owner  of  a  factory,  in  which  was  stored  a  large  quantity 
of  oil,  procured  from  his  superintendent  a  receipt  in  form  simi- 
lar to  w^arehouse  receipts,  in  which  it  was  stated  that  the  oil 
was  deliverable  to  the  order  of  such  owner.  The  receipt  was 
subsequently  pledged  and  there  was  an  attachment  levied  upon 
the  oil  in  an  action  against  the  owner  of  the  factory.  Held 
that  such  receipt  did  not  constitute  a  warehouse  receipt  within 
the  meaning  of  the  warehouse  law,  title  did  not  pass  thereby, 
and  that  the  execution  levied  by  the  sheriff  upon  the  oil  was 
validly  levied.     Yenni  v.  McNamee,  45  N.  Y.  614. 

Same — Fraudulently  issued  by  president  of  a  warehouse  com- 
pany in  his  own  name — Used  as  collateral  security — Facts  con- 
stituting notice — Warehouseman  not  estopped  to  show  goods  are 
not  actually  in  storage — Evidence. 

The  plaintiff,  a  national  bank,  loaned  money  to  the  presi- 
dent of  the  defendant  warehouse  company  upon  a  receipt  for 
a  quantity  of  cotton,  as  collateral  security.  The  warehouse 
receipt  was  negotiable  and  in  favor  of  the  president  of  the  com- 
pany individually  and  was  signed  by  him  as  president.  The 
note  given  for  which  the  receipt  was  collateral  was  not  paid 
and  the  bank  instituted  an  action  against  the  defendant  ware- 
houseman to  recover  the  cotton  represented,  or  its  value.  It 
appeared  that  the  by-laws  of  the  defendant  authorized  either 
its  president  or  its  treasurer  to  sign  warehouse  receipts.  It 
was  held  that  an  application  of  the  doctrines  of  principal  and 
agent  to  such  by-laws  could  not  cause  them  to  be  construed 


NEW     V(jRK.  597 

as  to  authorize  the  president  or  treasurer  to  issue  a  rea.'ipl  in 
his  own  name;  that  the  receipt  itself  being  issued  in  the  namr 
of  the  president  personally  and  signed  by  him  as  president  was 
sufficient  to  put  the  plaintiff  on  notice  and  that  the  plaintiff  was 
not  a  bo7ia  pde  holder  of  the  receipt.  Further  that  the  defendant 
was  not  estopped  to  show  that  the  goods  mentioned  in  the 
receipt  were  not  actually  in  store.  It  was  contended  in  behalf 
*of  the  plaintiff  that  a  new  trial  should  be  granted  because  at 
the  trial  of  the  case  the  plaintiff  was  not  permitted  to  introduce 
evidence  as  to  a  conversation  held  between  its  officers  and  the 
president  at  the  time  of  the  transaction  in  question.  It  was 
held  that  only  the  declaration  of  one  who  is  at  the  time  acting 
in  the  capacity  of  agent  can  be  receivable  as  admissions  against 
his  principal.  Bank  of  New  York  N.  B.  Association  v.  Ameri- 
can Dock  &  Trust  Co.,  14.3  N.  Y.  559,  aff'g  Same  v.  Same,  70 
Hun,  152;  Corn  Exchange  Bank  v.  American  Dock  &  Trust  Co., 
149  N.  Y.  174,  rev'g  Same  v.  Saine,  78  Hun,  400. 

Same — Same — Same — Inquiries  made  by  a  holder  of  the  receipt 
— Implied  authority  to  officer  to  issue  receipts  in  his  own  name — 
Questions  for  the  jury. 

Where  a  case  arose  on  a  similar  transaction  to  those  set  forth 
above  but  it  further  appeared  that  the  plaintiff  bank  had  made 
inquiries  of  another  officer  of  the  defendant  company  as  to 
whether  or  not  the  president  had  authority  to  issue  receipts 
in  his  own  name  and  was  told  that  he  had  such  authority,  antl 
that  on  four  or  five  occasions  the  president  had  issued  such 
receipts  and  they  had  been  honored  by  the  defendant  company 
by  a  delivery  of  the  goods  represented.  The  plaintiff  was  not 
permitted  to  go  to  the  jury  on  the  question  as  to  whether  or 
not  such  actions  on  the  part  of  the  defendant  did  not  estoji  it 
to  deny  that  its  president  had  authority  to  issue  receipts  in  his 
own  name,  but  upon  motion  of  the  defendant  a  verdict  was 
directed  in  its  favor.  It  was  held  on  appeal  that  as  the  ver- 
dict had  been  directed  against  the  plaintiff  it  was  entitled  to 
the  most  favorable  inferences  which  might  be  drawn  from  the 
evidence.  That  where  a  princij)al  permits  its  agent  to  do  an 
act  beyond  his  authority  without  objection,  he  is  liable  to  those 
who  were  not  aware  of  any  want  of  authority  to  the  same  ex- 


598  NEW    rOKK    DECISIONS. 

tent  as  if  the  necessary  power  had  been  directly  conferred. 
While  it  did  not  appear  from  the  evidence  that  the  directors 
had  knowledge  that  its  president  had  on  several  occasions 
issued  receipts  in  his  own  name  and  such  receipts  had  been 
honored,  nevertheless,  it  was  a  question  for  the  jury  to  deter- 
mine whether  the  directors  ought  not  to  have  known,  under 
all  the  circumstances,  that  such  transactions  had  taken  place. 
Therefore,  according  to  stipulation  contained  in  notice  of  ap-* 
peal,  judgment  absolute  was  directed  against  the  defendant. 
Hanover  Nat.  Bank  v.  American  Dock  d'  Trust  Co.,  148  N.  Y. 
612,  aflf'g  Same  v.  Same,  75  Hun,  55. 

Same — Parol  evidence  receivable  to  explain  meaning  of  term 
'^ cold  storage.'' 

The  plaintiff  brought  an  action  against  the  defendant,  a 
warehouseman,  to  recover  the  value  of  certain  poultry  which 
was  alleged  to  have  been  spoiled  while  in  the  cold  storage  rooms 
of  the  defendant's  warehouse.  On  the  trial  of  the  case  the 
plaintiff  offered  to  prove  that  the  phrase  "cold  storage"  had 
a  significance,  in  the  business  in  which  it  was  employed,  which 
would  require  the  defendant  to  keep  the  poultry  at  a  tempera- 
ture below  freezing.  This  evidence  was  ruled  out  by  the  court. 
The  plaintif!"  also  offered  to  prove  that  there  was  a  verbal  agree- 
ment made  at  the  time  of  the  storage  by  the  terms  of  which 
the  defendant  agreed  to  keep  the  poultry  in  such  a  degree  of 
cold  as  would  freeze  it  and  thus  preserve  it  from  injury  or 
spoiling  while  it  remained  in  his  warehouse.  The  court  also 
excluded  this  testimony.  It  was  held  on  appeal  that  the  e\d- 
dence  to  explain  the  meaning  of  the  phrase  "cold  storage" 
shoulfl  have  been  received  in  accordance  with  the  legal  rule 
that  evidence  is  always  admissible  to  explain  meanings  of 
terms  used  in  any  particular  trade  or  occupation,  when  their 
meaning  becomes  material  in  order  to  construe  a  contract ;  and 
further,  that  it  was  manifest  from  an  inspection  of  the  ware- 
house receipt  that  it  was  not  made  or  accepted  so  as  to  include 
the  broad  ground  of  the  entire  contract.  The  plaintiff  did 
not  propose  to  contradict  or  vary  the  receipt  but  to  add  to  it 
an  attribute  of  the  agreement  between  the  parties  defining  the 


NEW    voitK.  6yi« 

degree  of  cold  agreed  upon,  which  hail  hcen  oiuitted  from  the 
receipt.     Behrman  v.  Linde,  47  Hun,  530. 

Same — Evidence  not  admissible  to  shoiv  other  transactions. 

In  an  action  against  a  warehouseman  it  was  charged  that  lie 
had  isssued  a  receipt  for  goods  before  liaving  them  in  ston;. 
At  the  trial  evidence  was  admitted,  under  oljjection  l)y  the 
defendant,  that  the  defendant,  upon  another  occasion,  had 
given  a  receipt  for  other  goods  before  their  actual  receipt  at  the 
warehouse.  Held  on  appeal  that  the  adniis.sion  of  such  evidence 
constituted  reversible  error,  McCombie  et  al.y.  Spader,  1  Hun,  193. 

U. 

Taking  of  land  for  warehouse — Act  authorizing,  unconstitu- 
tional— Incidental  benefit  to  public  not  sufficient. 

A  company  was  incorporated  for  the  purposes  of  affording 
a  basin  or  harbor  for  vessels  and  for  the  warehousing  of  mer- 
chandise. By  a  subsequent  act  of  the  legislature  the  company 
was  permitted,  in  the  event  that  it  was  unable  to  ascertain  the 
owner  or  owners  of  certain  lands  after  the  exercise  of  reason- 
able diligence,  to  condemn  the  same  and  acquire  title  in  the 
manner  provided  by  law  for  the  acquisition  of  title  to  lands 
for  railroad  purposes.  The  company  sought  to  condemn  lands 
pursuant  to  this  act;  in  the  proceedings  it  appeared  that  the 
public  would  be  entitled  simply  to  an  entrance  to  the  basin 
constructed  by  the  company  and  to  the  use  of  the  center  thereof, 
the  surrounding  lands  to  be  occupied  with  private  warehouses. 
The  court  held  that  it  could  not  regard  such  a  project  as  one 
for  a  public  purpose  or  use  which  would  justify  the  delegation 
to  this  company  of  the  right  of  eminent  domain;  further  that 
the  effect  of  such  procedure  would  be  the  taking  of  private 
property  for  private  use  which  could  never  be  validly  authorized 
by  legislative  act,  although  it  might  be  true  that  the  structure 
intended  to  be  built  on  the  property  sought  to  be  condenmed 
might  incidentally  tend  to  benefit  the  public  by  affording  ad- 
ditional accommodations  for  business,  commerce  or  manufact- 
ure.    Matter  AppVn  of  E.  B.  W.  d'  M.  Co.,  96  X.  Y.  42. 

Liabilitij  of  directors — Failure  to  file  annual  report. 

The  defendants,  who  were  directors  in  a  corporation  doing 


600  NEW    YORK    DECISIONS. 

a  general  warehouse  business,  were  sued  by  the  plaintiff  upon 
certain  notes  signed  by  their  corporation  under  the  following 
circumstances.  The  payment  of  such  notes  was  secured  by 
the  deposit  of  a  warehouse  receipt  in  a  bank  from  which  receipt 
it  appeared  that  the  corporation  had  a  large  quantit}^  of  grain 
to  its  credit  in  the  warehouses  of  a  warehouse  association 
which  had  issued  the  receipt.  Subsequently,  the  corporation 
withdrew  the  grain  from  the  warehouses  of  the  association  and 
disposed  of  the  same.  The  notes  not  being  paid  by  the  corpora- 
tion the  warehouse  association  ])aid  the  same,  the  bank  indors- 
ing the  receipt  and  notes  in  blank.  The  association  thereupon 
assigned  the  receipt  and  notes  to  the  plaintiff  who  brought  suit 
against  the  defendants  individually  on  the  ground  that  they 
were  so  liable  under  the  laws  of  the  state  of  New  York,  it  ap- 
pearing that  the  corporation  of  which  they  were  directors  had 
failed  to  file  its  annual  report  as  required  by  law.  On  the  trial 
verdict  was  rendered  for  the  plaintiff;  a  denial  of  a  motion  for 
a  new  trial  was  affirmed  on  appeal.  Bedford  v.  Sherman  et  al., 
68  Hun,  317. 

Same — Charged  with  duty — Reasonable  inspection  of  the  books. 

The  directors  of  a  warehouse  corporation  are  chargeable  with 
the  knowledge  of  the  entries  made  on  its  books  in  the  ordinary 
course  of  its  business.  Such  directors  are  chargeable  with  the 
duty  of  a  reasonable  inspection  of  the  books  and  a  reasonable 
supervision  of  the  conduct  of  the  officers.  Hanover  Nat.  Bank 
V.  American  Dock  &  Trust  Co.,  148  N.  Y.  612. 

Liability  of  stockholders — " Fidl  paid  stock''  construed — Statute 
of  limitations. 

The  works  "full  paid  stock"  as  used  in  ch.  701  of  the  Laws 
of  1872  do  not  refer  to  the  whole  capital  stock  of  the  company 
but  to  the  stock  held  by  individual  stockholders.  Where  a 
stockholder  has  paid  in  full  his  subscription  to  stock,  his  stock 
is  full  paid.  There  is  no  lial)ility  unckM'  tliis  act  for  debts  made 
after  the  payment  of  the  capital  stock  and  the  recording  of  the 
certificate  as  therein  required.  In  an  action  brought  more  than 
six  years  after  the  cause  of  action  had  accrued,  the  statute  of 
hmitations  was  a  defense  which  should  have  been  sustained. 


NEW    YORK.  (JOl 

The  judgment  which  was  given  for  the  i)huntifT  was  reversed  on 
appeal.     Xat.  Pad:  Bank  v.  Heimcn,  23  J.  &.  8.  144. 

Public  warehousemen— Statute  prescribing  rates  for  storage,  con- 
stitutional—Indictment— I  j  such  rates  be  unreasonably  low,  qmere. 

The  defendant  was  incUcted  under  ch.  581  of  the  Laws  of 
1888  for  the  alleged  violation  theicof  in  that  he  charged  more 
than  the  rate  allowed  by  such  law  for  the  elevating  of  a  cargo 
of  grain  and  for  exacting  more  than  the  actual  cost  for  shovel- 
ing the  grain  to  the  leg  of  the  elevator.  The  defendant  con- 
tended that  the  act  in  question  was  unconstitutional  in  that 
it  deprived  him  of  liberty  and  property  without  due  i)rocess 
of  law,  contrary  to  art.  1,  sec.  6,  of  the  constitution  of  the  state 
of  New  York,  and  art.  14,  sec.  1,  of  the  constitution  of  the 
United  States  as  amended.  The  court  held  that  the  power 
of  the  legislature  to  regulate  the  charge  for  elevating  grain, 
even  where  the  business  is  carried  on  by  individuals  upon  their 
own  premises,  fell  within  the  scope  of  the  police  j)ower  of  the 
state  as  it  was  an  exercise  of  authority  necessar}-  for  the  internal 
regulation  and  government  of  the  state  for  its  public  welfare; 
that  the  business  of  elevating  grain  was  one  "affected  with  a 
public  interest,"  that  warehousemen  exercise  a  public  business 
and  assume  obligations  to  serve  the  entire  public  and  that  their 
property,  therefore,  in  a  legal  sense,  is  devoted  to  a  public  use. 
The  People  v.  Budd,  117  N.  Y.  1,  aff'd  143  U.  S.  517.  See  A'.  D. 
ex  rel.  Stoeser  v.  Brass,  2  N.  D.  482,  aff'd  153  U.  S.  391 ;  Munn  v. 
Illinois,  69  111.  80,  aff'd  94  U.  S.  113. 

Note.  In  the  opinion  in  The  People  v.  Budd  (143  U.  S.  "jl")  the  Supreme 
Court  declined  to  anticipate  what  its  decision  might  have  heen  iia<l  tho 
storage  rates  prescribed  by  statute  been  inadequate.  In  tlie  first  of  the 
above  cases  to  be  decided  by  tlie  United  States  Supreme  Court,  yfxnm 
V.  Illinois,  two  justices  dissented;  in  tlie  .second  case,  Thr  Penph  v.  BiKhl. 
three  justices  dissented;  in  tlie  last  case.  N.  D.  ex  rel.  Sfneser  v.  liraxs, 
there  were  four  dissenting  justices.  See  also  State  v.  Aaxnciated  Preiu, 
159  Mo.  410,  in  which  Mr.  Justice  Sherwood  sevorely  criticizes  tho  doctrine 
of  People  V.  Munn;  See  also  the  following  leadinir  cases  :  Peoplrv.  Wnhh. 
117  N.  Y.  621.  (The  report  of  this  case  in  22  N.  E.  Rep.  p.  r.TO.  contnins  Mr. 
Justice  Peckham's  dissenting  opinion.)  Dmc  v.  Beidehnnn.  12.'i  V.  S.  CSO  ; 
Los  Anr/eles  City  Water  Co.  v.  Cifi/  of  Los  Angeles,  177  U.  S.  S.'iS  ;  Covingtnn 
&  L.  T.  Co.  V.  Snndford,  164  U.  S.  578  ;  Lake  Slmre  rf-  ^f.  lii/.  Co.  v.  Smith. 
173  U.  S.  684  ;  M.  &  St.  Paul  Rt/.  Co.  v.  State,  134  IT.  S.  418  :  ^fi^,ne^pnli8 
E.  By.  Co.  V.  State,  134  U.  S.  407  :  Stmie  v.  Farmers'  L.  ,{■  T.  Co..  116  U.  S. 
307  ;  Smyth  v.  .-Imps,  169  U.  S.  466  :  Smyth  v.  Ames,  171  U.  S.  361  ;  People 
V.  Walsh,  36  L.  ed.  247. 


602  NORTH   CAROLINA   LAWS. 


CHAPTER  XXXIIl. 
NORTH  CAROLINA. 

LAWS   TERTAINING  TO  WAREHOUSEMEN. 

An  Act  relating  to  warehousemen,  authorizing  them  to  give 
bonds  and  issue  warehouse  receipts  secured  thereby,  and  pre- 
scribing and  regulating  their  powers  and  duties. 

Corporation  authorized  by  charter  to  engage  in  warehouse 
business  may  become  a  warehouseman  : 

Sec.  1.  The  General  Assembly  of  North  Carolina  do  enact: 
That  any  corporation  organized  under  the  laws  of  this  state 
and  whose  charter  authorizes  it  to  engage  in  the  business  of  a 
warehouseman  within  this  state  ma}'  become  a  public  ware- 
houseman and  authorized  to  keep  and  maintain  public  ware- 
houses for  the  storage  of  cotton,  goods,  wares  and  other  mer- 
chandise as  hereinafter  prescribed  and  upon  giving  the  bond 
hereinafter  required. 

Sec.  2.  To  give  hond—rAmoiint — Conditions.  Every  such  cor- 
poration so  organized  under  the  preceding  section  to  become  a 
public  warehouse  shall  give  bond  in  a  reliable  bond  or  surety 
company  to  the  clerk  of  the  court  of  the  county  wherein  is 
situated  the  warehouse  of  the  said  public  warehouseman,  in  an 
amount  not  less  than  twenty-five  thousand  dollars,  to  be  ap- 
proved, filed  with  and  recorded  by  the  clerk  of  the  said  court, 
for  the  faithful  performance  of  the  duties  of  a  public  ware- 
houseman. 

Sec.  3.  Injured  persons  may  sue  on  bond — Liability  for  costs. 
Whenever  such  warehouseman  fails  to  perform  its  duty  or  vio- 
lates any  of  the  provisions  of  this  act,  any  person  injured  by 
such  failure  or  violation  may  bring  an  action  in  his  name  and 
to  his  own  use  in  any  court  of  competent  jurisdiction  on  the 
bond  of  said  warehouseman,  and  in  case  he  should  fail  in  said 
action,  he  shall  be  liable  to  the  defendant  for  any  cost  which 
the  defendant  may  recover  in  the  action. 


NORTH    CAROLINA.  OO:'. 

Sec.  4.  Insurance  of  stored  property — Storage  receipts — Xon- 
negotiable  receipts.  Every  such  warehouseman  shall,  when  re- 
quested thereto  in  writing  by  a  party  placing  property  with  it 
on  storage,  cause  such  property  to  be  insured ;  every  such  ware- 
houseman shall,  except  as  hereinafter  provided,  give  to  each 
person  depositing  property  with  it  for  storage  a  receipt  tiiere- 
for,  which  shall  be  negotiable  in  form  and  shall  describe  the 
property,  distinctly  stating  the  brand  or  distinguishing  marks 
upon  it,  and  if  such  property  is  grain,  the  (juantity  and  in- 
spected grade  thereof.  The  receipts  shall  also  state  the  rate 
of  charges  for  storing  the  property  and  amount  and  rate  of  any 
other  charge  thereon,  and  also  the  amount  of  the  bond  and 
name  of  the  company  in  which  the  bond  is  taken,  given  to  the 
said  clerk  of  the  court  as  hereinabove  provided:  Provided,  how- 
ever, that  every  such  warehouseman  shall  upon  request  of  any 
person  depositing  property  with  it  for  storage,  give  to  such 
person  its  non-negotiable  receipt  therefor,  which  receipt  shall 
have  the  words  "Non-negotiable"  plainly  written,  printed  or 
stamped  on  the  face  thereof:  And  provided,  that  the  a.s.'^ign- 
ment  of  said  non-negotiable  receipts  shall  not  be  effective  until 
recorded  on  the  books  of  the  warehousemen  issuing  them. 

Sec.  5.  Title  to  goods  stored,  how  passed.  The  title  to  cotton 
goods,  merchandise  and  chattels  stored  in  public  warehouses 
shall  pass  to  a  purchaser  or  pledged  (e)  by  the  indorsement  and 
delivery  to  him  of  the  warehouseman's  receipt  therefor,  signed 
by  the  person  to  whom  such  receipt  was  originally  given  or  by 
the  indorsee  of  such  receipt. 

Sec.  6.  Where  identity  to  property  stored  camiot  he  preserved, 
receipt  a  valid  title  to  amount  designated  thereby.  When  grain 
or  other  property  is  stored  in  public  warehouses  in  such  a  man- 
ner that  different  lots  or  parcels  are  mixed  together,  or  that  the 
identity  cannot  be  accurately  preserved,  the  warehouseman's 
receipt  for  any  such  portion  of  grain  or  property  shall  be  deemed 
a  valid  title  to  so  much  thereof,  as  is  designated  in  receipt  with- 
out regard  to  separation  or  identification. 

Sec.  7.  Warehouseman  to  keep  book  of  accounts— What  to  con- 
tain— Open  to  inspection  of  interested  parties.  Ever)'  such  ware- 
houseman shall  keep  a  book  in  which  shall  be  entered  an  ac- 


604  NORTH    CAROLINA    LAWS. 

count  of  all  its  transactions  relating  to  warehousing,  storing 
and  insuring  cotton,  goods,  wares  and  merchandise,  and  to  the 
issuing  of  receipts  therefor,  which  books  shall  be  opened  to  the 
inspection  of  any  person  actually  interested  in  the  property 
to  which  such  entiy  relates. 

Sec.  8.  Puwer  to  sell  property  after  claim  for  storage  one  year 
overdue — Disposal  of  proceeds — Notice.  Every  such  public  ware- 
houseman which  shall  have  in  its  possession  any  property  by 
virtue  of  any  agreement  or  warehouse  receipt  for  the  same,  for 
which  a  claim  for  storage  is  at  least  one  year  overdue,  may 
proceed  to  sell  the  same  at  public  auction,  and  out  of  the  pro- 
ceeds may  retain  all  charges  for  storage  of  such  goods,  wares 
and  merchandise,  and  any  advances  that  may  have  been  made 
thereon  by  him,  or  them,  and  the  expense  of  advertising  and 
sale  thereof,  but  no  sale  shall  be  made  until  after  the  giving  of 
printed  or  written  notice  of  such  sale  to  the  person  or  persons 
in  whose  name  the  said  goods,  wares  and  merchandise  were 
stored,  requiring  him  or  them,  naming  them,  to  pay  the  arrears 
or  amount  due  for  such  storage,  and  in  case  of  default  in  so 
doing,  the  goods,  wares  and  merchandise  shall  be  sold  to 
pay  the  same,  at  a  time  and  place  to  be  specified  in  such 
notice. 

Sec.  9.  Notice  how  served — Return  of  service — Notice  by  publi- 
cation. The  notice  required  in  the  last  preceding  section  shall 
be  served  by  delivering  it  to  the  person  or  persons  in  whose 
name  such  goods,  wares  and  merchandise  were  stored,  or  by 
leaving  it  at  his  usual  place  of  abode,  if  within  this  state,  at 
least  thirty  days  before  the  time  of  sale,  and  a  return  of  the 
service  shall  be  made  by  some  officer  authorized  to  serve  civil 
process,  or  by  some  other  person  with  an  affidavit  of  the  truth 
of  the  return,  if  the  party  storing  such  goods  cannot  with  rea- 
sonable diligence  be  found  within  this  state,  then  such  notice 
shall  be  given  by  publication  once  a  week  for  two  successive 
weeks,  the  last  publication  to  be  at  least  ten  days  before  the 
time  of  such  sale,  in  a  newspaper  published  in  the  city  or  town 
where  such  warehouse  is  located.  In  the  event  that  the  party 
storing  such  goods  shall  have  parted  with  the  same,  and  the 
purchaser  shall  have  notified  the  warehouseman  with  his  ad- 


XOliTIl    CAUOLINA.  606 

dress,  such  notice  shall  be  given  to  such  person  in  lieu  of  the 
person  storing  the  goods. 

Sec.  10.  Surplus  of  proceeds  of  sale,  hoiu  recorded  and  disposed  of. 
Such  warehouseman  shall  make  an  entry  in  a  book  kept  for  that 
puri)ose  of  the  balance  or  surplus  of  the  proceeds  of  sale,  if  any, 
and  such  balance  of  sale,  if  any,  shall  be  j)aid  (A'cr  to  such 
person  or  persons  entitled  thereto  on  demand.  If  such  balance 
or  surplus  is  not  called  for  or  claimed  by  such  party  or  owner 
of  said  property  within  six  months  after  such  sale,  such  bal- 
ance or  surplus  shall  be  paid  by  said  warehouseman  to  the 
clerk  of  the  court  of  the  county  in  which  said  warchou.^^c  is 
located,  and  he  shall  pay  the  same  to  the  j)arties  entitled  thereto 
if  called  for  or  claimed  by  the  original  owner  within  ten  years 
after  the  sale  thereof,  and  such  w^arehouseman  shall  at  the 
same  time  file  with  said  clerk  an  affidavit  in  which  shall  be 
stated  the  name  and  place  of  residence  so  far  as  the  same  are 
known. 

Sec.  11.  Punishment  for  being  party  to  unlawful  scllinf/,  ])lcdg- 
ing,  lending  or  disposing  of  property  stored.  Whoever  unlawfully 
sells,  pledges,  lends,  or  in  any  other  way  disposes  of  or  jjermits 
or  is  a  party  to  the  unlawful  selling,  pledging,  l(>nding,  or  other 
disposition  of  any  goods,  wares,  merchandise,  or  anything  de- 
posited in  a  public  warehouse  without  the  authority  of  the  party 
who  deposited  the  same,  shall  be  jxmished  by  a  fine  not  to  ex- 
ceed $2,000  and  by  imprisonment  in  the  state  jDcnitentiary  for 
not  more  than  three  years,  but  no  oflficer,  manager  or  agent  of 
such  public  warehouse  shall  be  liable  to  the  penalties  provided 
in  this  section,  unless  with  the  intent  to  injure  or  defraud  any 
person,  he  so  sells,  pledges,  lends,  or  in  any  other  way  disposes 
of  the  same,  or  is  a  party  to  the  seUing,  pledging,  lending  or 
other  disposition  of  any  goods,  wares,  merchandise,  article  or 
thing  so  deposited. 

Sec.  12.  Powers  in  regard  to  perishable  or  dangerous  property 
stored.  Whenever  a  public  warehouseman  has  in  its  possession 
any  property  of  a  perishable  nature,  or  which  will  deteriorate 
greatly  in  value  by  keeping,  or  upon  which  the  charges  for 
storage  will  be  likely  to  exceed  the  value  thereof,  or  which  by 
its  odor,  leakage,  inflammability  or  explosive  nature  is  likely 


(JOtJ  NORTH    CAROLINA    LAWS. 

to  injure  other  goods,  such  property  having  been  stored  upon 
non-negotiable  receipts,  and  when  said  warehouseman  has  noti- 
fied the  person  in  whose  name  the  property  was  received  to 
remove  said  property,  but  if  such  person  has  refused  or  omitted 
to  remove  said  property  and  to  pay  the  storage  and  proper 
charges  thereon,  said  pubHc  warehouseman  may  in  the  exercise 
of  a  reasonable  discretion  sell  the  same  at  public  or  private  sale 
\\'ithout  advertising,  and  the  proceeds,  if  there  are  any,  after 
deducting  the  amount  of  said  storage  and  charges,  and  expense 
of  sale,  shall  be  paid  or  credited  to  the  person  in  whose  name 
the  property  was  stored,  and  if  said  person  cannot  be  found  on 
reasonable  inquiry,  the  sale  may  be  made  without  any  notice 
and  the  proceeds  of  such  sale  after  deducting  the  amount  of 
storage  or  expense  of  sale,  shall  be  paid  to  the  clerk  of  the 
court  of  the  county  wherein  said  warehouse  is  situated,  who 
shall  pay  the  same  to  the  person  entitled  thereto,  if  called  for 
or  claimed  by  the  rightful  owner  within  five  years  of  the  receipt 
thereof  by  said  clerk. 

Sec.  13.  When  unable  to  sell  perishable  and  worthless  property, 
warehouseman  may  dispose  of  it  in  any  lawful  manner  without 
liability.  Whenever  a  public  warehouseman  under  the  provi- 
sions of  the  preceding  section  has  made  a  reasonable  effort  to 
sell  perishable  and  worthless  property,  and  has  been  unable  to 
do  so  because  of  its  being  of  little  or  no  value,  it  may  then  pro- 
ceed to  dispose  of  such  property  in  any  lawful  manner,  and  it 
shall  not  be  liable  in  any  way  for  property  so  disposed  of. 

Sec.  14.  When  property  sold  fails  to  bring  storage  expenses  and 
other  charges,  party  in  whose  name  stored  liable  for  balance.  When- 
ever a  public  warehouseman  under  the  provisions  of  the  two 
preceding  sections  has  sold  or  otherwise  disposed  of  property 
and  the  proceeds  of  such  sale  or  disposition  have  not  equalled 
the  amount  necessary  to  pay  the  storage  charges,  expenses  of 
sale,  and  other  charges  against  said  property,  then  the  person 
in  whose  name  said  property  was  stored  shall  be  liable  to  said 
public  warehouseman  for  an  amount  which  added  to  the  pro- 
ceeds of  such  sale  will  be  sufficient  to  pay  all  of  the  proper 
charges  upon  said  property ;  or  in  case  such  property  was  value- 
less and  there  were  no  proceeds  realized    from  its  disposition. 


NORTH    CAROLINA.  607 

the  person  in  whose  name  said  property  was  stored  shall  ho 
liable  to  said  public  warehouseniau  lor  all  {jroper  charges  against 
said  property. 

Sec.  15.  Conflictiufi  lawH  repealed.  All  acts  or  parts  of  acts 
inconsistent  or  in  conflict  with   this  act  are  hereby  repealed. 

Sec.  16.  This  act  shall  be  in  force  and  effect  from  and  after 
its  ratification. 

In  the  General  Assembly  read  three  times,  and  ratifietl  this 
the  14th  day  of  March,  A.  D.,  1901.  Laws,  North  Carolina, 
1901,  p.  908  et  seq. 

An  Act  to  fix  a  maximum  schedule  of  charges  for  selling  leaf 
tobacco  by  all  warehouses  in  North  Carolina. 

Charges  of  tobacco  warehouses  regulated : 

Sec.  1.  The  General  Assembly  of  North  Carolina  do  enact:  That 
the  charges  and  expenses  of  handling  and  selling  leaf  tobacco 
upon  the  floor  of  tobacco  warehouses  in  the  stat(^  of  North  Caro- 
lina shall  not  exceed  the  following  schedule  of  prices,  viz:  For 
auction  fees,  fifteen  cents  on  all  piles  of  one  hundred  pounds  or 
less,  and  twenty-five  cents  on  all  piles  over  one  hundred  pounds; 
for  weighing  and  handling,  ten  cents  per  pile  for  all  piles  less 
than  one  hundred  pounds,  for  all  piles  over  one  hundred  jjounds 
at  the  rate  of  ten  cents  per  hundred  pounds;  for  connnission  on 
the  gross  sales  of  leaf  tobacco  in  said  warehouses  not  to  exceed 
two  and  one  half  per  centum. 

Sec.  2.  All  leaf  tobacco  to  be  weighed  by  sworn  weigher,  etc. — 
Oath.  That  all  leaf  tobacco  sold  upon  the  floor  of  any  tobacco 
warehouse  in  the  state  of  North  Carolina  shall  first  be  weighed 
by  some  reliable  person,  who  shall  have  first  sworn  and  sub- 
scribed to  the  following  oath,  to  wit:  "I  do  .solemnly  .swear  (or 
affirm)  that  I  will  correctly  and  accurately  weigh  all  tobacco 

offered  for  sale  at  the  warehouse  of .  and  correctly 

test  and  keep  accurate  the  scales  upon  which  the  tobacco  so 
oiTered  for  sale  is  weighed."  Said  oath  to  be  filed  in  the  oflico 
of  the  clerk  of  the  superior  court  of  the  county  in  which  said 
warehouse  is  situated. 

Sec.  3.  Bill  of  charges  to  be  rendered  seller,  etc.  Tliat  the 
proprietor  of  each  and  every  warehouse  shall  render  to  each 


608  NORTH    CAKOLINA    LAWS. 

seller  of  tobacco  at  his  warehouse  a  bill  plainly  stating  the 
amount  charged  for  weighing  and  handling,  the  amounts 
charged  for  auction  fees,  and  the  conmiission  charged  on  such 
sale,  and  it  shall  be  unlawful  for  any  other  charges  or  fees  to 
be  made  or  accepted. 

Sec.  4.  Penalty  for  violation.  That  for  each  and  every  viola- 
tion of  the  provisions  of  this  act  a  penalty  of  ten  dollars  be 
enforced  and  the  same  may  be  recovered  by  any  one  so  offended. 

Sec.  5.  Conflicting  laws  repealed.  That  all  laws  and  clauses  of 
laws  in  conflict  with  this  act  are  hereby  repealed. 

Sec.  6.  When  act  to  take  effect.  This  act  shall  be  in  force  from 
and  after  the  first  day  of  October,  one  thousand  eight  hundred 
and  ninety-five.  Ratified  this  23d  day  of  February,  A.  D., 
1895.     Laws,  North  Carolina,  1895,  p.  87  et  seq. 

Tobacco  warehouses — Tax  on  sworn  statement  to  be  made 
to  clerk  or  commissioners  : 

On  every  tobacco  warehouse  where  tobacco  is  sold  or  exhib- 
ited for  sale  the  annual  tax  shall  be :  For  one  hundred  thousand 
pounds  or  less,  five  dollars,  and  five  dollars  for  each  additional 
one  hundred  thousand  pounds  sold.  Every  person  or  firm  lia- 
ble to  tax  under  this  section  shall,  within  ten  days  after  the 
first  day  of  May  and  November  in  each  year,  deliver  to  the 
clerk  of  the  board  of  county  commissioners  a  sworn  statement 
of  the  total  amount  of  his  or  their  sales  for  the  preceding  six 
months  ending  on  the  thirtieth  day  of  April  and  the  thirty- 
first  day  of  October.  The  sheriff  shall  collect  the  tax  without 
delay.  Sec.  3.3,  ch.  216,  Laws,  North  Carohna,  1889.  Ratified 
March  11,  1889. 


NOllTIl    CAROLINA.  609 

DECISIONS  AFFECTING  WAREHOUSEMEN. 

B. 

Warehouseman  not  insurers — Damages — Negligence. 

While  warehousemen  are  not  insurers  like  common  carriers, 
they  are  liable  for  damages  caused  by  their  negligence,  to 
articles  stored  with  them.  Motley  &  Co.  v.  Southern  Finishing 
&  Warehouse  Co.,  122  N.  C.  347. 

Conversion — Refusal  to  deliver. 

Where  a  bailee  refuses  on  demand  to  deliver  a  note  to  the 
owner,  who  is  entitled  to  the  possession  thereof,  it  constitutes 
a  conversion,  and  an  action  of  trover  will  lie  against  the  bailee. 
Smith  V.  Durham,  127  N.  C.  417. 

N. 

Loss  by  fire — Degree  of  diligence  required — Suggestions  by 
bailor  or  others — Bailee  without  profit — Ride. 

A  railroad  company  had  in  its  possession  as  warehousemen, 
the  goods  of  plaintiff,  upon  which  the  freight  had  been  })aid. 
The  goods  were  retained  in  the  warehouse  at  plaintiff's  re- 
quest. A  fire  broke  out  near  the  warehouse  but  not  on  the 
property  of  the  company.  While  the  fire  was  burning  plain- 
tiff asked  permission  to  remove  his  goods.  This  was  refused, 
because,  in  the  opinion  of  the  company's  officers,  if  the  ware- 
house were  opened  much  of  the  property  stored  therein  would 
be  stolen,  and  also  because  they  did  not  think  at  that  time 
there  was  danger  of  the  warehouse  taking  fire.  The  company 
made  every  effort  in  its  power  to  prevent  the  communication 
of  the  fire  to  the  warehouse,  and,  after  it  was  plain  that  such 
efforts  would  prove  fruitless,  had  the  doors  of  the  warehouse 
broken  open  and  as  many  goods  removed  therefrom  as  possi- 
ble. The  company  had  property  of  very  great  value  so  located 
that  it  must  have  been  burned  before  the  warehouse  could  take 
fire,  and  the  utmost  diligence  was  used  to  remove  tliis  property. 
If  such  efforts  had  been  successful,  the  danger  of  the  warehouse 
taking  fire  would  have  been  greatly  reduced.  Held  that  it 
was  not  the  duty  of  the  company  to  act  upon  the  suggestion 
39 


(ilO  NORTH    CAltoLlNA    DKCMSIONS. 

of  plaintiff,  or  strangers,  as  to  the  best  method  to  save  the 
goods  in  the  warehouse.  That  if  it  used  all  means  at  its  com- 
mand  and  acted  upon  the  bona  fide  judgment  of  its  employees 
as  to  the  best  method  to  prevent  the  destruction  oi-  loss  of  the 
warehouse  and  goods  therein,  it  was  not  liable  for  the  destruc- 
tion of  plaintiff's  goods.  The  custodian  of  another's  property, 
who  uses  the  means  which,  at  the  time  of  danger,  appear  to  him 
best  for  its  preservation  is  not  to  be  held  responsible  for  failing 
to  adopt  measures  which  subsequent  events  show  would  have 
produced  better  results.  An  honest  and  reasonable  effort  made 
in  the  exercise  of  an  honest  judgment  is  all  the  law  requires  of 
him.     Turrentine  v.  Wilmington  &  W.  R.  R.  Co.,  100  N.  C.  375. 

Same — Negligence — Proxim ate  cause . 

In  an  action  for  damages  against  a  railway  company  to  re- 
cover the  value  of  goods  lost  by  the  alleged  negligence  of  the 
defendant,  it  appeared  thiit  after  the  arrival  of  the  goods  they 
were  placed  on  a  platform  at  the  depot  for  the  convenience  of 
delivery  to  consignees,  and  remained  there  for  nearly  two  days; 
notice  of  their  arrival  was  given  the  plaintiff  who  paid  the 
freight  charges  with  full  knowledge  of  the  place  of  deposit,  but 
failed  to  remove  them  on  account  of  his  inability  at  the  time 
to  procure  the  services  of  city  draymen  for  that  purpose,  and 
in  the  afternoon  of  the  second  day  they  were  destroyed  by  fire, 
together  with  much  of  defendant's  property.  Held,  (1)  There 
was  a  delivery  in  law  of  the  goods  to  the  plaintiff  consignee, 
which  exonerated  the  defendant  company  from  liability  as 
warehousemen  ;  (2)  the  fact  that  the  fire  originated  in  a  steam 
cotton  compress,  erected  on  the  company's  premises  with  its 
permission  but  not  under  its  control,  does  not  constitute  negli- 
gence in  the  defendant,  the  permission  to  erect  the  same  not 
being  the  proximate  cause  of  the  injury  sustained  by  the  plain- 
tiff.    Clark  &  Co.  v.  Charlotte,  C.  &  A.  R.  R.  Co.,  85  N.  C.  423. 

Same — Exclu.Hon  of  evidence — Error. 

The  plaintiff  brought  an  action  against  the  defendant  steam- 
boat company  for  failure  to  safely  convey  to  him  certain  goods 
which  were  destroyed  by  fire  in  defendant's  warehouse,  where 
they  had  been  stopped  on  the  route.     There  was  a  contract  on 


NOKTM    CAUoiINA.  611 

the  bill  of  lading  that  the  defendant  was  not  to  he  liable  for  any 
loss  or  damage  arising  from  fire,  etc.  Held  that  (lucstioiis  tend- 
ing to  show  defendant  had  negligently  allowed  an  aeeuinulation 
of  freight  in  its  warehouse  were  improperly  exeluded.  Horn- 
thai  V.  Roanoke,  N.  &  B.  S.  Co.,  107  N.  C.  70. 

Negligence. 

Warehousemen  are  liable  under  the  general  law  for  damages 
caused  by  their  negligence.  Motley  v.  Southern  Finishing  & 
Warehouse  Co.,  124  N.  C.  232. 

Ignorance  and  ivant  of  experience  of  bailee  known  to  bailor — 
Ordinary  care. 

Where  it  was  known  to  bailor  at  the  time  of  storage  that  the 
bailee  knew  nothing  about  tobacco,  and  had  had  no  experience  in 
handling  it,  the  bailee  would  not  be  held  hable  for  injury  result- 
ing from  want  of  skill  and  experience ;  but  would  be  bound  to  use 
such  ordinary  care  as  a  prudent  man  woukl  exercise  to  guard 
against  moisture  in  the  structure  of  the  warehouse  and  the  loca- 
tion of  the  tobacco.  Motley  v.  Southern  Finishing  ct  Ware- 
house Co.,  126  N.  C.  339. 

0. 

Measure  of  damages. 

The  measure  of  damages  for  property  damaged  while  in  the 
care  of  a  storage  or  warehouse  company  is  the  difference  be- 
tween the  market  value  of  the  property  in  its  damaged  condi- 
tion and  w^hat  it  w^ould  have  sold  for,  if  undamaged,  on  the  day 
of  its  return  to  the  owner.  Motley  &  Co.  v.  Southern  Finishing 
&  Warehouse  Co.,  122  N.  C.  347. 

R. 

Bill  of  lading — Ordinary  care. 

The  contract  on  the  bill  of  lading  discharged  the  defendant 
from  its  liability  as  an  insurer,  if  ordinary  care  was  exorcised 
in  protecting  the  goods  while  in  its  warehouse.  Hornthal  v. 
Roanoke,  N.  &  B.  S.  Co.,  107  N.  C.  76. 

Same — Limitation  0f<  to  — Notice  of  /o.s.<;.  void. 

A  clause  in  a  bill  of  lading  that  notice  of  loss  or  damage  to 


<)12  NORTH    CAltnLINA    DECISIONS. 

the  goods  must  be  given  in  writing  to  u  carrier  within  thirty  days 
after  dehvery  thereof,  or  after  due  time  for  such  dehvery,  is 
unreasonable  and  void.  Gwyn  Harper  Mfg.  Co.  v.  Carolina 
Central  R.  R.,  128  N.  C.  280. 

Same — Interpretation — Exemption  clause. 

A  clause  in  a  bill  of  lading  that  the  goods  will  be  shipped,  "at 
the  convenience  of  the  company"  will  not  protect  it  from  lia- 
bility for  an  unreasonable  delay.  Branch  &  Pope  v.  Wilming- 
ton &  W.  R.  R.  Co.,  88  N.  C.  573. 

Same — Agency — Parol . 

A  common  carrier  is  not  boimd  by  a  bill  of  lading  issued  by 
its  agent  unless  the  goods  be  actually  received  for  shipment; 
and  the  principal  is  not  estopped  thereby  from  showing,  by 
parol,  that  no  goods  were  in  fact  received,  although  the  hill  has 
been  transferred  to  a  bona  fide  holder  for  value.  Williams,  Black 
&  Co.  V.  The  Wilmington  &  W.  R.  R.  Co.,  93  N.  C.  42;  Brown 
v.  Brooks,  7  Jones,  93,  and  Smith  v.  Brown,  3  Hawks,  580. 

U. 

Charter  provisions — Exclusive  privileges  unconstitutional. 

A  provision  in  a  charter  of  a  warehouse  corporation  to  the 
efTect  that  such  corporation  shall  not  be  liable  for  loss  or  dam- 
ages not  provided  for  in  its  warehouse  receipt  or  contract,  at- 
tempts to  confer  exclusive  privileges  and  is  therefore  uncon- 
stitutional and  void.  Motley  &  Co.  v.  Southern  Finishing  & 
Warehouse  Co.,  122  N.  C.  347. 

Same — Same — Illustration. 

The  clause  of  the  charter  of  the  defendant  company  which 
reads  as  follows:  "Provided,  however,  that  said  company  shall 
not  be  held  responsible  for  losses  arising  from  the  act  of  God, 
or  of  common  enemies,  nor  for  any  loss  or  damage  not  provided 
for  in  its  warehouse  receipt  or  contract ;  and  said  company  may 
make  such  stipulations  in  its  warehouse  receipts  or  contracts, 
as  to  loss  or  damage  ensuing  by  fire  or  other  cause,  as  it  may 
deem  necessary  and  proper''  is  in  contravention  of  art.  1,  sec.  7, 
of  the  constitution.  Motley  &  Co.  v.  Southern  Finishing  & 
Warehouse  Co.,  124  N.  C.  232. 


MOliTll    DAKOTA.  tJlg 


CHAPTER  XXXIV. 

NORTH  DAKOTA. 

LAWS   PERTAINING  TO   WAREHOUSEMEN. 

Public  warehouses — Coiiiiuissiouers  of  railroad,  ])owers 
and  duties: 

The  duties  imposed  b)^  the  provisions  of  tliis  article  and  the 
powers  conferred  herein  devolve  upon  the  commissioners  of 
railroads.     Revised  Code,  North  Dakota,  1895,  sec.  1783. 

Handling,  weighing  and  storage  of  grain  : 

It  shall  be  the  duty  of  the  conunissioners  of  railroads  to  super- 
vise the  handling,  weighing  and  storage  of  grain  antl  seed;  to 
establish  all  necessary  rules  and  regulations  for  the  weighing 
of  grain  and  for  the  management  of  the  public  warehouses  of 
the  state,  so  far  as  such  rules  and  regulations  may  be  necessary 
to  enforce  the  provisions  of  this  article  or  any  law  in  this  state 
in  regard  to  the  same,  investigate  all  complaints  of  fraud  or 
oppression  in  the  grain  trade  of  this  state,  and  correct  the  same 
as  far  as  it  may  be  in  their  power.     Id.  sec.  1784. 

Rules  to  be  published  : 

The  rules  and  regulations  so  established  shall  be  printed  and 
published  by  the  commissioners  of  railroads  in  such  manner  as 
to  give  the  greatest  publicity  thereto,  and  the  same  shall  be  in 
force  and  effect  until  tliey  are  changed  or  abrogated  by  such 
commissioners  in  a  like  public  manner.     Id.  sec.   1785. 

Amendment— Public  warehouses — Defined  : 

All  buildings,  elevators  and  warehouses,  and  all  grist  and 
flour  mills  doing  a  shipping  business  in  this  state,  erected  and 
operated,  or  which  may  hereafter  bo  erected  and  operated  by 
any  person,  as.sociation,  copartnersliip,  corporation  or  tru.<!t, 
for  the  purposes  of  buying,  selling,  storing,  shipping  or  handling 


614  NOKTH    DAKOTA    LAWS. 

grain  for  profit,  are  declared  public  ^^•arehouses,  and  the  person, 
association,  copartnership  or  corporation  owning  or  operating 
such  buildings,  elevators  or  warehouses,  which  are  now,  or  may 
hereafter  be  located  or  doing  business  within  this  state,  whether 
such  owners  or  operators  reside  within  this  state  or  not,  are 
public  warehousemen  within  the  meaning  of  this  article,  and 
.none  of  the  provisions  of  this  article  shall  be  construed  so  as 
to  permit  discrimination  with  reference  to  buying,  receiving  and 
handling  grain  of  standard  grades  or  in  regard  to  the  persons 
offering  such  grain  for  sale,  storage  and  handling,  at  such  public 
warehouses,  while  the  same  are  in  operation.  [Approved 
March  13,  1901.]     Laws  of  N.  D.  1901,  ch.  140,  p.  179. 

License,  how  obtained — Fee,  how  determined  : 

An  annual  state  license  must  be  obtained  through  the  com- 
missioners of  railroads  for  each  and  every  public  grain  ware- 
house in  operation  in  this  state.  No  license  issued  under  this 
article  shall  describe  more  than  one  public  grain  warehouse, 
or  grant  permission  to  operate  any  other  public  grain  ware- 
house than  the  one  therein  described.  The  license  fee  is  hereby 
fixed  at  two  dollars  for  warehouses  of  a  capacity  of  less  than 
ten  thousand  bushels;  and  three  dollars  for  warehouses  of  a 
capacity  of  ten  thousand  bushels  and  over,  for  each  public  grain 
warehouse;  provided,  that  before  any  license  is  issued  the  per- 
son applying  therefor  shall  file  with  the  commissioners  of  rail- 
roads the  receipt  of  the  state  treasurer,  showing  that  the  appli- 
cant has  paid  into  the  state  treasury  the  amount  of  said  license 
fee.     Revised  Code,  North  Dakota,  1895,  sec.  1787. 

License  to  be  conspicnonsly  posted — Penalty : 

The  license  thus  obtained  shall  be  posted  in  a  conspicuous 
place  in  the  public  warehouse  so  licensed.  Every  such  license 
shall  expire  on  the  first  day  of  August  next  following  the  issu- 
ance thereof,  and  no  license  shall  run  for  a  longer  period  than 
one  year.  Any  person  or  association,  who  shall  transact  the 
business  of  public  warehouseman  without  first  procuring  a  li- 
cense as  herein  provided,  shall  on  conviction,  be  fined  in  a  sum 
not  less  than  twenty-five  dollars  for  each  and  every  day  such 
business  is  carried  on.     Id.  sec.  1788. 


NOHTH    DAKUTA.  tilO 

Bond  to  be  filed  : 

The  proprietor,  lessee  or  manager  of  any  warehouse  or  ele- 
vator in  this  state  shall  file  with  the  commissioners  of  railroads 
a  bond  to  the  state  with  good  and  suflicient  sureties  to  be  ap- 
proved by  such  commissioners  in  the  penal  sum  of  ntjt  less  than 
five  thousand  nor  more  than  seventy-five  thousand  dollars,  in 
the  discretion  of  the  connnissioners,  conditioned  for  the  faith- 
ful performance  of  their  duty  as  public  warehousemen  and  a 
compliance  with  all  the  laws  of  this  state  in  relation  thereto. 
One  bond  only  need  be  given  for  any  line  of  elevators  or  ware- 
houses owned,  controlled  or  operated  by  one  individual,  firm 
or  corporation.  Such  bond,  specifying  the  location  of  each 
elevator  or  warehouse  operated  by  such  individual,  firm  or 
corporation,  shall  be  in  a  sufficient  amount  to  protect  the 
holder  of  outstanding  tickets.     Id.  sec.  1789. 

Warehouse  receipts,  what  to  contain  : 

All  owners  of  such  elevators  and  warehouses  shall,  ujx)n  the 
request  of  any  person  delivering  grain  thereat,  give  a  warehouse 
receipt  therefor,  subject  to  the  order  of  the  owner  or  consignee, 
which  receipt  shall  bear  date  corresponding  with  the  receipt  of 
the  grain,  and  shall  state  upon  its  face  the  quantity  and  grade 
fixed  upon  the  same.  All  warehouse  receipts  shall  be  con- 
secutively numbered,  and  no  two  receipts  bearing  the -same 
number  and  series  shall  be  issued  during  the  same  year.  No 
warehouse  receipt  shall  be  issued  except  upon  the  actual  delivery 
of  grain  into  such  warehouse.  No  such  warehouseman  shall 
insert  in  any  warehouse  receipt  issued  by  him  any  language  in 
anywise  limiting  or  modifying  his  liabilities  as  imposed  by  the 
laws  of  this  state.     Id.  sec.  1790. 

What  storage  receipts  shall  express  : 

Each  storage  receipt  issued  in  this  state  shall  expressly  pro- 
vide that  at  the  option  of  the  holder  of  such  receipt  the  kind, 
quality  and  quantity  of  grain  for  which  such  receipt  was  issued 
shall  be  delivered  back  to  him  at  the  same  place  where  it  was 
received  upon  the  payment  of  a  reasonable  charge  per  bushel 
for  receiving,  handling,  storing  and  insurance  charges,  such 
charges  to  be  fixed  by  express  terms  in  the  storage  receipt  at 


61G  NORTH   DAKOTA   LAWS. 

the  time  of  receiving  the  grain  at  the  elevator  or  warehouse  and 
at  the  time  of  issuing  the  receipt;  but  no  charges  shall  be  made 
for  cleaning  grain  unless  such  grain  has  been  actually  cleaned; 
and  nothing  in  this  section  shall  be  construed  to  require  the 
delivery  of  the  identical  grain  specified  in  the  receipt  so  pre- 
sented, but  an  equal  amount  of  the  same  grade,  except  wheat 
placed  in  special  bins.     Id.  sec.  1791. 

Bailment,  not  a  sale — Insolvency : 

Whenever  any  grain  shall  be  dehvered  to  any  person,  asso- 
ciation, -firm  or  corporation  doing  a  grain,  warehouse  or  grain 
elevator  business  in  this  state  and  the  receipt  issued  therefor 
provides  for  the  delivery  of  a  like  amount  and  grade  to  the 
holder  thereof  in  return,  such  delivery  shall  be  a  bailment  and 
not  a  sale  of  the  grain  so  delivered,  and  in  no  case  shall  the  grain 
so  stored  be  liable  to  seizure  upon  process  of  any  court  in  an 
action  against  such  bailee,  except  actions  by  owners  of  such 
warehouse  receipts  to  enforce  the  terms  thereof,  but  such  grain 
shall  at  all  times  in  the  event  of  the  failure  or  insolvency  of  such 
bailee  be  first  applied  exclusively  to  the  redemption  of  out- 
standing warehouse  receipts  for  grain  so  stored  with  such 
bailee.  And  in  such  event  grain  on  hand  in  any  particular 
elevator  or  warehouse  shall  first  be  applied  to  the  redemption 
and  satisfaction  of  receipts  issued  by  such  warehouse.  Id. 
sec.  1792. 

Larceny — Punishment : 

Each  person  and  each  member  of  any  association,  firm  or 
corporation  doing  a  grain  warehouse  or  grain  elevator  business 
in  this  state,  who  shall  after  demand,  tender  and  offer  as  pro- 
vided in  the  last  section,  willfully  neglect  or  refuse  to  deliver  to 
the  person  making  such  demand,  the  full  amount  of  grain  of 
the  grade  or  the  market  value  thereof  which  such  person  is 
entitled  to  demand  of  such  bailee,  shall  be  deemed  guilty  of 
larceny.     Id.  sec.  1793. 

Rates  of  storage : 

The  charges  for  storage  and  handling  of  grain  shall  not  exceed 
the  followdng  rates :  For  receiving,  elevating,  insuring,  delivering 


^'01iTIl    DAKOTA.  017 

and  twenty  days'  storage,  two  cents  per  bushel.  Storage  rates 
after  the  first  twenty  days,  one  half  cent  for  each  fifteen  days 
or  fraction  thereof,  and  not  exceeding  five  cents  for  six  months. 
The  grain  shall  be  kept  insured  at  the  expense  of  the  warehouse- 
man for  the  benefit  of  the  owner.     Id.  sec.  1794. 

Section  constitutional : 

The  above  section  held  constitutional  in  North  Dakota  ex  rel. 
Stoeser  v.  Brass,  2  N.  D.  482,  aff'd  153  U.  S.  391.  See  North 
Dakota  decisions,  page  626. 

Penalty  for  violation  of  this  article : 

Any  person  who  shall  knowingly  cheat,  or  falsely  weigh  any 
wheat  or  other  agricultural  pi'oducts,  or  who  shall  violate  any 
of  the  provisions  of  this  article  shall  be  deemed  guilty  of  a  mis- 
demeanor, and  shall  on  conviction  thereof  be  subject  to  a  fine 
of  not  less  than  two  hundred  dollars  nor  more  than  one  thou- 
sand dollars  and  be  imprisoned  in  the  penitentiary  for  a  period 
not  exceeding  one  year,  in  the  discretion  of  the  court.  Id. 
sec.  1795. 

Erection  of  Grain  Warehouses  on  Railroad  Right  of  Way. 

Construction  of  warehouses  on  ri2:ht  of  way  : 

Any  two  or  more  persons  who  have  or  shall  by  articles  of 
agreement  in  writing  associate  themselves  together  under  any 
name  assumed  by  them  for  the  purpose  of  operating  a  ware- 
house or  elevator  for  the  purchase,  storage  and  shii)i)ing  of 
wheat  or  other  grain  within  this  state,  may  make  an  a!)i)lica- 
tion  in  writing  to  any  railroad  company  or  corporation  organ- 
ized under  the  laws  of  this  state,  or  doing  business  therein, 
be  ])ermitted  to  construct,  maintain  and  operate  a  warehouse 
or  elevator  at  any  of  its  regular  way  stations  upon  its  right  of 
way,  to  be  used  for  the  purpose  aforesaid,  and  the  railroad 
company  or  corporation  so  applied  to  shall  grant  such  aitplica- 
tion  without  regard  to  the  capacity  of  such  elevator  or  ware- 
house and  without  discrimination  as  to  persons,  and  in  the 
order  in  which  such  application  shall  be  presented.  Id.  sec. 
1796. 


618  NOKTH    DAKOTA    LAWS. 

Public  wareliousejs,  how  rental  to  be  deteruiined  : 

All  elevators  or  warehouses  erected  under  the  provisions  of 
the  last  section  shall  be  kept  open  for  the  transaction  of  busi- 
ness during  such  portion  of  the  year  as  may  be  required  by  the 
laws  of  the  state,  or  connnissioners  of  railroads.  The  associa- 
tions or  corporations  which  shall  avail  themselves  of  the  ben- 
efit of  this  section  are  declared  to  be  public  corporations,  sub- 
ject to  legislative  supervision  and  control  at  all  times  and  in 
all  particulars  in  which  rights  or  powers  are  conferred  upon 
them  by  the  provisions  hereof.  Befoi'e  the  application  here- 
inbefore mentioned  need  be  granted  by  any  railroad  company 
or  corporation,  the  association  making  the  same  shall  pay  or 
secure  to  such  railroad  compa.ny  or  corporation  such  compen- 
sation for  the  right,  privilege  or  franchise  demanded  in  such 
petition  as  may  be  agreed  upon  between  the  parties  as  a  just 
and  reasonable  yearly  rental  therefor,  or  a  fixed  or  certain 
amount  to  be  paid  in  one  sum  in  lieu  of  a  rental  to  be  paid 
annually  for  the  use  and  occupation  of  the  site  occupied  by 
such  warehouse  or  elevator  and  the  uses  and  privileges  con- 
nected therewith.  If  they  fail  to  agree  upon  such  yearly  rental, 
or  upon  a  gross  sum  to  be  paid  in  lieu  thereof,  all  further  pro- 
ceedings shall  be  had  under  the  chapter  on  eminent  domain 
in  the  code  of  civil  procedure.     Id.  sec.  1797. 

Side  tracks  to  be  provided  by  railroad  company : 

Every  railroad  company  or  corporation  organized  under  the 
laws  of  this  state,  or  doing  business  therein,  shall  upon  appli- 
cation in  writing  provide  reasonable  side  track  facilities  and 
running  connections  between  its  main  track  and  elevators  and 
warehouses  upon  or  contiguous  to  its  right  of  way  at  such  sta- 
tions; and  every  such  railroad  corporation  shall  permit  con- 
nections to  be  made  and  maintained  in  a  reasonable  manner 
with  its  side  tracks  to  and  from  any  warehouse  or  elevator 
without  reference  to  its  size,  cost  or  capacity,  where  grain  is 
or  may  be  stored,  that  such  railroad  company  shall  not  be 
required  to  construct  or  furnish  any  side  tracks  except  upon 
its  own  land  or  right  of  way;  provided,  further,  that  such  ele- 
vators and  warehouses  shall  not  be  constructed  within  one 
hundred  feet  of  any  existing  structure  and  shall  be  at  safe  fire 


distance  from  the  station  building  and  so  as  not  essentially 
to  conflict  with  the  safe  and  convenient  oi)erati()n  dl"  the  road; 
and  where  stations  are  ten  miles  or  more  apart  the  railroad 
company  when  required  so  to  do  by  the  commissioners  of  rail- 
roads shall  construct  and  maintain  a  side  track  for  the  use  uf 
shippers  between  such  stations.     Id.  sec.  1798. 

Bights  and  privileges  of  individuals  : 

Individuals  shall  have  the  same  rights  and  privileges  under 
the  provisions  of  the  last  three  sections  as  associated  persons, 
corporations  and  associations.  Id.  sec.  1799.  See  ch.  114, 
Laws  of  1895,  below. 

When  unclaimed  proi)erty  may  be  sold  : 

Whenever  any  trunk,  carpetbag,  valise,  bundle,  {)ackage  or 
article  of  property  transported  or  coming  into  the  possession 
of  any  railroad,  or  express  company  or  any  other  conmion 
carrier  in  the  course  of  his  or  its  business  as  common  carrier 
shall  remain  unclaimed  and  the  legal  charges  thereon  unpaid 
during  the  space  of  six  months  after  its  arrival  at  the  point  to 
which  it  shall  have  been  directed  and  the  owner  or  jjerson  to 
whom  the  same  is  consigned  cannot  be  found  upon  diligent 
inquiry  or,  being  found  and  notified  of  the  arrival  of  such  arti- 
cle, shall  refuse  or  neglect  to  receive  the  same  and  pay  the  legal 
charges  thereon  for  the  space  of  three  months,  it  shall  be  lawful 
for  such  common  carrier  to  sell  such  article  at  public  auction 
after  giving  the  owner  or  consignee  fifteen  days'  notice  of  the 
time  and  place  of  sale  through  the  post-office  and  by  advertis- 
ing in  a  newspaper  pubUshed  in  the  county  where  such  sale  is 
made  and  out  of  the  proceeds  of  such  sale  to  pay  all  legal  charges 
on  such  article  and  the  amount  over,  if  any.  shall  be  |)aid  to 
the  owner  or  consignee  upon  demand.     Id.  sec.  4195. 

When  perishable  property  may  be  sold  : 

Perishable  property  which  has  been  transjiorted  to  its  desti- 
nation and  the  owner  or  consignee  notified  of  its  arrival,  or 
being  notified,  refuses  or  neglects  to  receive  the  same  and  pay 
the  legal  charges  thereon,  or  if  ujion  diligent  iiKpiiry  the  con- 
signee cannot  be  found,  such  carrier  may  in  the  exercise  of  a 


620  NORTH    DAKOTA    LAWS. 

reasonable  discretion  sell  the  same  at  public  or  private  sale 
without  advertising  and  the  proceeds  after  deducting  the  freight 
and  charges  and  expenses  of  sale  shall  be  paid  to  the  owner  or 
consignee  upon  demand.     Id.  sec.  4196. 

Applies  to  hotel  keepers  aud  warebousemen  : 

The  provisions  of  the  last  two  sections  shall  apply  to  hotel 
keepers  and  warehousemen.     Id.  sec.  4197. 

Bill  of  lading — Defiued  : 

A  bill  of  lading  is  an  instrument  in  writing  signed  by  a  carrier 
or  his  agent,  describing  the  freight  so  as  to  identify  it,  stating 
the  name  of  the  consignor,  the  terms  of  the  contract  for  carriage 
and  agreeing  or  directing  that  the  freight  be  delivered  to  the 
order  or  assigns  of  a  specified  person  at  a  specified  place.  Id. 
sec.  4198. 

Negotiable  : 

All  the  title  to  the  freight  which  the  first  holder  of  a  bill  of 
lading  had  when  he  received  it  passes  to  every  subsequent  in- 
dorsee thereof  in  good  faith  and  for  value  in  the  ordinary  course 
of  business  with  like  effect  and  in  like  manner  as  in  the  case  of 
a  bill  of  exchange.     Id.  sec.  4199. 

Wben  delivery  transfers : 

When  a  bill  of  lacUng  is  made  to  bearer  or  in  equivalent  terms 
a  simple  transfer  thereof  by  delivery  conveys  the  same  title 
as  an  indorsement.     Id.  sec.  4200. 

Obligations  of  carriers  not  altered  : 

A  bill  of  lading  does  not  alter  the  rights  or  obligation  of  the 
carrier  as  defined  in  this  chapter  unless  it  is  plainly  inconsistent 
therewith.     Id.  sec.  4201. 

Carrier  ninst  give  sets  of  bills  on  demand  : 

A  carrier  must  subscribe  and  dolivor  to  the  consignor  on  de- 
mand any  reasonable  number  of  bills  of  lading  of  the  same 
tenor,  expressing  truly  the  original  contract  for  cari'iage;  and 
if  he  refuses  to  do  so  the  consignor  ma}''  take  the  freight  from 
him  and  recover  from  him  besides  all  damages  thereby  occa- 
sioned.    Id.  sec.  4202. 


NOlMIl     l>AKi»TA.  621 

Carrier  exonerated  by  delivering'  freight  to  holder : 

A  carrier  is  exononitotl  from  liability  for  freight  hy  delivery 
thereof  in  good  faith  to  any  holder  of  a  bill  of  lading  therefor, 
properly  indorsed,  or  made  in  favor  of  the  bearer.     Id.  sec.  4203. 

When  surrender  required  : 

When  a  carrier  has  given  a  ])ill  of  lading  or  other  instrument 
substantially  equivalent  thereto,  he  may  recjuire  its  surrender 
or  a  reasonable  indenmity  against  claims  thereon  before  deliv- 
ering the  freight.     Id.  sec.  4204. 

Making  false  manifest — Bill  of  lading— Penalty  : 

Every  person  guilty  of  preparing,  making  or  subscribing,  any 
false  or  fraudulent  manifest,  invoice,  bill  of  lading,  l)oafs  register 
or  protest,  with  intent  to  defraud  another,  is  i)unishable  by  im- 
prisonment in  the  penitentiary  not  less  than  one  and  not  ex- 
ceeding three  years,  or  by  a  fine  not  exceeding  one  thousand 
dollars,  or  both.     Id.  sec.  7497. 

Bills  of  lading — Fraudulent — Punishment : 

Every  person  being  the  master,  owner  or  agent  of  any  vessel 
or  officer  or  agent  of  any  railroad,  express  or  transportation 
company  or  otherwise  being  or  representing  any  carrier,  who 
delivers  any  bill  of  lading,  receipt  or  other  voucher,  or  by  which 
it  appears  that  any  merchandise  of  any  description  has  been 
shipped  on  board  any  vessel  or  delivered  to  any  railroad,  ex- 
press or  transportation  comjiany  or  other  carrier,  unless  the 
same  has  been  shipped  or  delivered,  and  is  at  the  time  actually 
under  the  control  of  such  carrier,  or  the  master,  owner  or  agent 
of  such  vessel,  or  of  some  officer  or  agent  of  such  company,  to 
be  forwarded  as  expressed  in  such  bill  of  lading,  receipt  or 
voucher,  is  punishable  by  imprisonment  in  the  penitentiary 
not  less  than  one  and  not  exceeding  five  years,  or  by  a  fine  not 
exceeding  one  thousand  dollars,  or  both.     Id.  sec.  7540. 

Warehouse  receipt — Fraudulent^ — Punishment : 

Every  person  carrying  on  the  busine.';s  of  a  warehouseman, 
wharfinger  or  other  depositary  of  |)roperty,  wlio  issues  .-my 
receipt,  bill  of  lading  or  other  voucher  for  any  merchandise  of 


(i22  ]SOKTH    DAKOTA    LAWS. 

any  description  which  has  not  been  actually  received  upon  the 
premises  of  such  person,  and  is  not  under  his  actual  control 
at  the  time  of  issuing  such  instrument,  whether  such  instru- 
ment is  issued  to  a  person  as  being  the  owner  of  such  merchan- 
dise or  as  security  for  any  indebtedness,  is  punishable  by  im- 
prisonment in  the  penitentiary  not  less  than  one  and  not  ex- 
ceeding five  years  or  by  a  fine  not  exceeding  one  thousand 
dollars,  or  both.     Id.  sec.  7541. 

Same — Exceptions : 

No  person  can  be  convicted  of  any  offense  under  the  last 
two  sections  by  reason  that  the  contents  of  any  barrel,  box, 
case,  cask  or  other  vessel  or  package  mentioned  in  the  bill  of 
lading,  receipt  or  other  voucher,  did  not  correspond  with  the 
description  given  in  such  instrument  of  the  merchandise  re- 
ceived, if  such  description  corresponded  substantially  with  the 
marks,  labels  or  brands  upon  the  outside  of  such  vessel  or 
package,  unless  it  appears  that  the  accused  knew  that  such 
marks,  labels  or  brands  were  untrue.     Id.  sec.  7542. 

Warehouse  receipt — Duplicate : 

Every  person  mentioned  in  sections  7540  and  7541,  who  issues 
any  second  or  duphcate  receipt  or  voucher,  of  a  kind  specified 
in  those  sections,  at  a  time  while  any  former  receipt  or  voucher 
for  the  merchandise  specified  in  such  second  receipt  is  outstand- 
ing and  uncancelled,  without  writing  across  the  face  of  the  same 
the  word  "duphcate,"  in  a  plain  and  legible  manner,  is  punish- 
able by  imprisonment  in  the  penitentiary  not  less  than  one 
and  not  exceeding  five  years,  or  by  a  fine  not  exceeding  one 
thousand  dollars,  or  both.     Id.  sec.  7543. 

Selling  goods  without  consent  of  holder  of  bill  of  lading : 

Every  person  mentioned  in  sections  7540  and  7541,  who  sells, 
hypothecates  or  pledges  any  merchandise  for  which  any  bill  of 
lading,  receipt  or  voucher  has  been  issued  by  him,  without  the 
consent  in  writing  thereto  of  the  person  holding  such  bill,  re- 
ceipt or  voucher  is  punishable  by  imprisonment  in  the  peniten- 
tiary not  loss  than  one  and  not  exceeding  five  years,  or  by  a 
fine  not  exceeding  one  thousand  dollars,  or  both.     Id.  sec.  7544. 


NOKTJI     1)AK(»TA.  g28 

Bill  of  lading  or  receipt  must  be  taiicelled  : 

Every  person,  such  as  mentioned  in  section  7541,  who  delivers 
to  another  any  nierchanchse  for  vvhicii  any  hill  of  lading,  receipt 
or  voucher  has  been  issued,  unless  such  receipt  or  v(jucher  bore 
upon  its  face  the  words  "not  negotiable,"  plainly  written  or 
stamped,  or  unless  such  receipt  is  surrendered  to  be  cancelled 
at  the  time  of  such  delivery,  or  unless,  in  the  case  of  a  |)artial 
delivery,  a  memorandum  thereof  is  indorsed  uj^on  such  receipt 
or  voucher,  is  punishable  by  imprisonment  in  the  penitentiary 
not  less  than  one  and  not  exceeding  five  years,  or  by  a  fine  not 
exceeding  one  thousand  dollars  or  both.     Id.  sec.  7545. 

When  last  two  sections  do  not  apply  : 

The  last  two  sections  do  not  apply  when  property  is  de- 
manded by  virtue  of  process  of  law.     Id.  sec.  7546. 


624  NOBTH   DAKOTA  DECISIONS. 


DECISIONS  AFFECTING  WAREHOUSEMEN. 

A. 

Bailment — The  mingling  of  wheat  with  other  of  a  like  quality. 

The  plaintiff,  the  owner  of  wheat,  deposited  the  same  with 
the  defendant,  a  warehouseman.  It  appears  under  the  ware- 
house receipts  and  the  statutes  pertaining  thereto  that  plaintiff 
was  not  entitled  to  demand  the  delivery  of  the  identical  wheat 
stored.  It  was  held  that  this  constitutes  a  contract  of  bailment 
and  not  a  sale.     Marshall  v.  Andrews  &  Gage,  8  N .  D.  364. 

B. 

Conversion — Prima  facie  case. 

Where  the  plaintiff  shows  delivery  of  the  property  to  the 
defendant  and  a  demand  for  its  return  and  a  refusal  to  comply 
with  such  demand,  he  has  made  out  a  prima  facie  case  of  con- 
version.    Id. 

Same — Necessity  of  demand. 

In  order  to  sustain  an  action  for  the  conversion  of  property 
stored  with  a  warehouseman  it  is  essential  to  show  demand 
prior  to  suit.  Towne  v.  St.  Anthony  &  Dakota  Elevator  Co.,  8 
N.  D.  201 ;  Sanford  v.  Diiluth  &  Dakota  Elevator  Co.,  2  N.  D.  6. 

Same — Effect  of  notice  as  to  ownership  of  property  stored. 

If  a  warehouseman  receives  grain  and  stores  the  same  issuing 
the  receipts  therefor  in  the  name  of  the  one  who  deposits  the 
same,  it  is  held  that  in  the  absence  of  notice,  actual  or  con- 
structive, of  the  claim  of  another  of  title  to  the  grain  stored, 
that  the  warehouseman  cannot  be  held  guilty  of  conversion. 
If,  however,  it  can  be  shown  that  the  warehouseman  received 
notice  or  was  in  possession  of  such  facts  as  would  put  a  reason- 
able man  on  guard  or  notice  of  the  adverse  title,  it  is  held  that 
the  issuance  of  receipts  to  one  not  the  owner  of  the  grain,  or, 
the  shipment  of  the  grain  out  of  the  state,  would  constitute  a 
conversion  thereof.  Towne  v.  St.  Anthony  &  Dakota  Elevator 
Co.,  8  N.D.  200. 


NORTH   DAKOTA.  (J25 

tiame— Purchase  of  mortgaged  chattel  not  in  itself  a  conversion. 

The  owner  of  certain  wheat  who  had  hcrrowcl  money  tliereon 
and  had  given  a  chattel  niort-age  to  secure  tlie  payment  thereof, 
such  mortgage  being  properly  recorded  as  re(iuired  by  law,  de- 
posited the  same  in  the  warehouse  of  the  defendant,  the  defend- 
ant thereupon  paying  in  full  for  the  wheat  and  becoming  the 
purchaser  thereof.     In  a  suit  against  the  defendant  for  the 
conversion  of  the  wheat  it  was  held  that  in  such  a  case  a  de- 
mand was  essential  before  suit  brought,  and  further  that  the 
sale  and  delivery  alone  did  not  constitute  a  conversion.     It 
was  further  held  that  even  had  the  defendant  had  actual  notice 
of  the  mortgage  in  addition  to  the  constructive  notice  that 
the  purchase  by  him  of   the  property  would  in  no  sense  have 
been  a  conversion  thereof  as,  under  the  laws  of  the  state,  the 
owner  of  personal  property  has  always  a  right  to  sell  and  de- 
liver the  same,  the  purchaser  taking  a  good  title  subject  to  any 
lien  thereon,  and  finally  that  a  chattel  mortgage  does  not  trans- 
fer the  title  of  the  property.     Sanford  v.  Duluth  &  Dakota  Ele- 
vator Co.,  2  N.  D.  6. 

Same — When  demand  unnecessary. 

The  defendant,  a  warehouseman,  received  wheat  in  store  and 
prior  to  issuing  the  receipts  therefor  to  the  depositor  received 
notice  from  the  plaintiff  that  she  had  a  claim  against  such  wheat 
pursuant  to  an  agreement  with  the  depositor  and  notified  the 
warehouseman  not  to  issue  the  receipts  until  her  claim  was 
satisfied.  Subsequently  the  defendant  issued  the  receipts  to 
the  depositor  without  notice  to  the  plaintiff.  Upon  the  above 
stated  facts  it  was  held  that  the  issuance  of  these  receipts  by 
the  warehouseman  constituted  a  conversion  of  the  property  for 
which  he  was  liable  and  that  the  contention  made  in  his  IxOinlf 
that  it  w^as  necessary  to  show  a  demand  made  upon  iiim  prior 
to  suit  brought  could  not  be  sustained  as  the  conversion  had 
taken  place  at  the  time  the  receipts  were  issued  to  the  depositor. 
Willard  v.  Monarch  Elevator  Co.,  10  N.  D.  400. 

L. 

Replevin — When  it  will  not  lie — Mingling  of  grain. 

The  owner  of  certain  wheat  who  had  mortgaged  it   to  the 
40 


626  NORTH    DAKOTA    DECISIONS. 

plaintiff  stored  the  same  in  a  warehouse  and  took  a  general 
storage  receipt  therefor.  As  was  the  custom,  the  wheat  was 
mingled  with  other  wheat  stored  in  the  warehouse  and  the  de- 
fendant had  a  right  to  the  return  of  the  identical  wheat  stored. 
The  mortgagee  brought  replevin  against  the  defendant  for  the 
recovery  of  the  wheat.  It  was  lield  that  it  could  not  be  main- 
tained for  the  defendant  as  the  owner  of  the  storage  ticket  did 
not  have  either  constructive  or  actual  possession  of  the  grain 
in  question.     Best  v.  Muir,  8  N.  D.  44;  Marshall  v.  Andrews  & 

Gage,  8  N.  D.  364. 

N. 

Loss  by  fire — Gratuitous  -payment — Gross  negligence. 

In  a  suit  against  a  railroad  company  charging  it  with  Uability 
as  a  warehouseman  for  the  destruction  of  goods  by  fire  while 
stored  in  its  depot  the  evidence  was  conflicting  as  to  whether 
or  not  the  company  was  acting  as  a  gratuitous  bailee  or  as  one 
for  hire ;  but  as  the  evidence  further  showed  that  burning  waste 
had  been  thrown  within  thirty  inches  of  the  depot  platform 
and  had  been  left  there  by  one  of  the  employees  of  the  defend- 
ant, it  was  held  that  the  company  was  liable  in  either'  case  and 
that  such  conduct  constituted  gross  negligence.  Whiting  v. 
Chicago,  M.  &  St.  P.  R.  R.  Co.,  5  Dak.  90. 

Same — Burden  of  proof. 

Where  the  defendant,  a  warehouseman,  attempted  to  excuse 
the  non-delivery  of  goods  intrusted  to  him  on  the  ground  that 
they  were  destroyed  by  fire,  the  burden  of  proof  was  on  him 
to  show  that  the  fire  was  not  caused  by  his  negligence.  Marshall 
V.  Andrews  &  Gage,  8  N.  D.  364. 

U. 

Public  warehousemen— Statute  prescribing  rates  of  storage  con- 
stitutional—If such  rates  be  unreasonably  low,  qucere. 

By  chapter  126  of  the  Laws  of  1891  of  the  state  of  North 
Dakota  the  rates  of  storage  which  public  warehousemen  were 
allowed  to  charge  were  prescribed.  Said  act  further  defined 
what  would  constitute  a  public  warehouse.  In  an  action  by 
the  state  at  the  relation  of  one  Stoeser  against  a  warehouseman 
for  violation  of  this  statute  it  was  contended  in  behalf  of  the 


NORTH    DAKOTA.  627 

defendant  that  the  act  in  (jucstion  al)n(lgi'd  his  privilc^^'cs  and 
innnunities  and  that  it  deprived  him  of  his  Uberty  and  property 
without  due  process  of  hiw  and  that  it  denied  to  him  the  erjual 
protection  of  the  Uiw  guaranteed  to  him  Ijy  tlie  state  and  federal 
constitutions.  It  appeared  that  the  defendant  had  suflicient 
empty  space  in  his  warehouse  in  which  to  store  the  relator's 
grain  and  that  lie  refused  to  receive  the  grain  for  tiie  reason 
that  he  was  unwilling  to  reduce  his  storage  charges  under  legis- 
lative diction.  Nothing  was  alleged  or  claimed  in  argument 
tending  to  show  that  the  prescribed  rate  w^ould  be  noncom- 
pensatory; much  less  that  it  would  operate  practically  to  con- 
fiscate defendant's  business  as  a  warehouseman.  The  question 
involved  was  therefore  clearly  one  of  legislative  power  with 
reference  to  the  limitations  of  such  jjower  existing  in  the  con- 
stitutions of  the  state  and  nation.  The  court  held  that  the  act 
in  question  was  constitutional  as  the  legislature  in  the  proper 
exercise  of  the  internal  police  power,  inherent  in  every  govern- 
ment, could  control  the  business  of  warehousemen.  North 
Dakota  ex  ret.  Stoeser  v.  Brass,  2  N.  D.  482,  aff'd  153  U.  S.  391; 
Munn  V.  Illinois,  69  111.  80,  aff'd  94  U.  S.  113;  The  People  v. 
Budd,  117  N.  Y.  1,  aff'd  143  U.  S.  517.  In  the  last  cited  case 
the  United  States  supreme  court  declined  to  anticipate  what 
its  decision  might  have  been  had  the  storage  rates  prescribed 
by  statute  been  inadequate.  See  note  undoi-  People  v.  Budd, 
New  York  Decisions,  p.  601,  this  volume. 


028  OHIO   LAWS. 


CHAPTER  XXXV. 
OHIO. 

LAWS  PERTAINING  TO  WAREHOUSEMEN. 

Lien  of  consignee  of  merchandise  : 

Every  person  in  whose  name  any  merchandise  is  shipped,  or 
delivered  to  the  keeper  of  any  warehouse,  or  other  factor  or 
agent,  to  be  shipped,  shall  be  deemed  the  true  owner  thereof, 
so  far  as  to  entitle  the  consignee  of  such  merchandise  to  a  lien 
thereon:  First,  for  any  money  advanced,  or  negotiable  security 
given  by  such  consignee,  to  or  for  the  use  of  the  person  in  whose 
name  such  shipment,  or  such  delivery  of  merchandise  to  be 
shipped  has  been  made.  Second,  for  money  or  negotiable 
security  received  by  the  person  in  whose  name  such  shipment, 
or  such  delivery  of  merchandise  to  be  shipped,  has  been  made 
to,  or  for  the  use  of,  such  consignee.  Bates'  Annotated  Ohio 
Stats.  1900,  sec.  3214. 

Limitation  on  last  section : 

The  lien  provided  for  in  the  preceding  section  shall  not  exist 
when  such  consignee  has  notice  by  the  bill  of  lading,  or  other- 
wise, at  or  before  the  advancing  of  any  money  or  security  by 
him,  or  at  or  before  receiving  of  such  money  or  security  by  the 
person  in  whose  name  the  shipment  or  th(>  dehvery  of  the  mer- 
chandise to  be  shipped  has  been  made,  that  such  person  is  not 
the  actual  and  bona  fide  owner  thereof.     Id.  sec.  3215. 

In  what  cases  factor  or  agent  deemed  true  owner  : 

Every  factor  or  other  agent,  intrusted  with  the  possession  of 
any  bill  of  lading,  custom  house  permit,  or  warehousekeeper's 
receipt  for  the  delivery  of  any  such  merchandise,  and  every 
such  factor  or  agent,  not  having  the  documentary  evidence  of 
title,  intrusted  with  the  possession  of  any  morohnndiso  for  the 
purpose  of  sale,  or  as  a  security  for  any  advances  to  be  made 


OHIO.  G2y 

or  obtained  thereon,  sliall  Ik-  (Iccmcd  to  be  the  true  owner  there- 
of, so  far  as  to  give  valitlity  to  any  contract  made  by  such  agent 
with  any  other  i)erson  for  the  sale  or  disposition  of  the  whole 
or  any  part  of  such  merchandise,  for  any  money  advanced  or 
negotiable  instnnnent,  or  other  obligation  in  writing,  given  by 
such  other  person  upon  the  faith  thereof.     Id  sec.  'A2U). 

Above  section  construed  : 

Where  a  bank  had  in  good  faith  loaned  money  to  a  factor  and 
had  taken  in  security  therefor  a  warehouse  receipt,  which  had 
been  sent  to  the  factor  by  the  owner  for  the  purpose  of  effecting 
a  sale,  it  was  held  that  the  transaction  was  a  valid  one  and  the 
bank  was  therefore  protected;  it  appearing  that  the  loan  made  to 
the  factor  was  a  new  loan  and  that  the  receipt  had  not  been 
transferred  to  the  bank  to  secure  any  antecedent  debt  or  de- 
mand.    Cleveland,  Brown  &  Co.  v.  Shoeman,  40  0.  S.  176. 

When  merchandise  accepted  from  such  agent  as  security 
for  antecedent  debt : 

Every  person  who  accepts  any  such  merchandise  on  dej)osit 
from  any  such  agent,  as  security  for  any  antecedent  debt  or 
demand,  shall  not  thereby  ac(iuire  or  enforce  any  right  or  in- 
terest in  or  to  such  merchandise  or  document,  other  than  was 
possessed  or  might  have  been  enforced  by  such  agent,  at  the 
time  of  such  deposit.  Bates'  Annotated  Ohio  Stats.  1900,  sec. 
3217. 

Rights  of  true  owner  under  last  two  sections  : 

Nothing  contained  in  the  two  last  preceding  sections  shall  be 
construed  to  prevent  the  true  owner  of  any  merchandise,  so 
deposited,  from  demanding  or  receiving  the  same,  upon  repay- 
ment of  the  money  advanced,  or  on  restoration  of  the  security 
given  on  the  deposit  of  such  merchandise,  and  upon  satisfying 
such  lien  as  may  exist  thereon  in  favor  of  the  agent  who  may 
have  deposited  the  same;  nor  from  recovering  any  balance 
which  may  remain  in  the  hands  of  the  person  with  whom  such 
merchandise  has  been  deposited,  as  the  produce  of  the  .'^ale 
thereof,  after  satisfying  the  amount  justly  due  to  such  person 
by  reason  of  such  deposit.     Id.  sec.  3218. 


630  OHIO    LAWS. 

Hypothecation,  etc.,  by  common  carriers  and  warehouse- 
men : 

Nothing  contained  in  this  chapter,  except  as  hereinafter  pro- 
vided, shall  authorize  a  common  carrier,  warehousekeeper,  or 
other  person  to  whom  merchandise  or  other  property  may  be 
committed  for  transportation  or  storage  only,  to  sell  or  hy- 
pothecate the  same.     Id.  sec.  3219. 

Owner's  relief  by  action  : 

A  comt  may  compel  discovery,  or  grant  relief  in  an  action 
therein  by  owner  of  any  merchandise  or  other  property,  so 
intrusted  or  consigned,  against  the  factor  or  agent  by  whom 
such  merchandise  or  other  property  has  been  applied  or  sold, 
contrary  to  law,  or  against  a  person  who  knowingly  is  a  party 
to  such  fraudulent  application  or  sale  thereof;  but  no  answer 
in  such  action  shall  be  read  in  evidence  against  the  defendant 
making  the  same  on  the  trial  of  any  indictment  for  the  fraud 
charged  in  the  petition.     Id.  sec.  3220. 

Notice  to  owner  of  receipt  of  freight : 

All  express  companies,  transportation  companies,  forward- 
ing and  commission  merchants,  common  carriers,  warehouse- 
men, wharfingers,  and  railroad  companies,  doing  business  in  this 
state  shall  within  thirty  days  after  the  receipt  of  any  property 
in  their  warehouse,  depot,  station,  store  or  other  place  of  de- 
posit or  doing  business  when  such  property  is  plainly  marked 
with  the  owner's  name  and  place  of  residence,  or  be  otherwise 
known,  notify  the  owner  that  such  property  is  held  by  them 
subject  to  charges,  either  by  leaving  such  notice  at  the  usual 
residence  or  place  of  business  of  the  owner,  or  by  depositing 
the  same,  postage  prepaid,  in  the  proper  post-office,  duly  ad- 
dressed to  such  owner.     Id.  sec.  3221. 

Register  of  freight : 

All  persons,  associations,  or  companies,  shall  keep  a  register, 
in  which  shall  be  entered  a  list  or  inventory  of  all  goods,  wares, 
merchandise,  baggage,  or  other  property,  with  a  pertinent  de- 
scription thereof  by  marks  thereon,  the  size  and  weight,  and 
the  depot,  warehouse,  or  other  place  where  the  same  is  deposited. 


OHIO.  (j:jl 

the  time  when  the  same  was  received,  and  the  amount  of  charges 
claimed  thereon,  which  may  be  left  in  the  possession  of  such 
person,  association  or  company,  by  reason  of  the  owner  being 
unknown,  or  when  such  owner's  residence  is  not  known,  or  when 
such  property  has  been  refused,  or  the  owner  has  neglected  to 
receive  the  same.     Id.  sec.  3222. 

When  property  may  be  sold : 

When  any  such  property  has  been  conveyed  to  any  point 
in  this  state,  and  remains  unclaimed  for  the  space  of  six  months 
at  the  place  to  which  it  is  consigned,  and  the  owner  fails  within 
that  time  to  claim  the  same,  and  to  pay  the  proper  charges,  if 
there  be  any  against  it,  such  person,  association,  or  company, 
may  sell  such  freight  or  other  property,  at  public  auction,  of- 
fering each  parcel  separately.     Id.  sec.  3223. 

Notice  of  sale  of  property  to  be  given  : 

Such  property  may  be  offered  for  sale  either  in  the  place  where 
the  office,  station,  depot,  or  warehouse  in  which  the  same  has 
been  deposited  for  safe-keeping,  is  located,  or  at  any  other  jjlace 
where  such  person,  association,  or  company  may  deem  best  t(j 
insure  a  prompt  sale  thereof;  at  least  thirty  days'  notice  of  the 
time  and  place  of  sale,  containing  a  descriptive  list  of  the  several 
articles  to  be  sold,  with  names,  numbers,  and  marks  "thereon, 
shall  be  given,  by  posting  such  notice  at  the  office,  station,  or 
depot  of  such  person,  association,  or  company  in  the  county 
where  the  place  to  which  such  property  was  consigned  is  situ- 
ated, or,  if  there  be  no  such  office,  station,  or  depot,  by  posting 
such  notice  in  three  public  places  in  such  county;  and,  in  addi- 
tion to  the  posting  at  the  place  of  consignment,  such  descriptive 
list  must  be  posted  at  the  place  where  the  property  is  to  be  sold, 
and  thirty  days'  notice  of  the  time  and  place  of  sale  must  be 
published  in  a  newspaper  of  general  circulation  in  the  county 
where  the  property  is  to  be  sold.     Id.  sec.  3224. 

Disposition  of  proceeds  of  sale  : 

Such  person,  association,  or  company,  from  the  proceeds  of 
the  sale  of  such  property,  shall  pay  all  the  nece.«?sarv  costs  and 
expenses  of  the  sale,  and  all  proper  charges  for  freight  and  storage 


632  OHIO   LAWS. 

of  tlie  property  sold,  apportioning  such  expenses  and  ciiarges, 
as  near  as  may  be,  among  the  articles  sold,  to  the  amount  re- 
ceived for  each,  and  hold  the  overplus,  if  any,  subject  to  the 
order  of  the  owner  thereof,  at  any  time  within  one  year  after 
such  sale,  upon  proof  of  ownership  by  affidavit  of  the  claimant 
or  his  attorney;  and  after  the  expiration  of  one  year,  all  such 
sums  unclaimed  shall  be  paid  into  the  state  treasury,  to  be 
placed  to  the  credit  of  the  common  schools;  but  any  such  article 
remaining  unsold  may  again  be  offered  as  above  provided,  until 
sold.     Id.  sec.  3225. 

Suit  to  subject  freight  to  payment  of  costs,  etc. : 

Such  person,  association  or  company  may  bring  suit  before 
any  court  of  competent  jurisdiction  for  the  amount  of  the  freight, 
storage,  and  legal  charges  thereon,  and  subject  such  freight  to 
the  payment  thereof,  after  ten  days  from  the  giving  of  the  notice 
provided  for  in  section  thirty-two  hundred  and  tiventy-one  unless 
such  cost  and  charges  are  paid,  if  the  owner  or  consignee  is  known 
or  can  be  found  in  the  county,  but  if  such  owner  or  consignee 
is  unknown,  a  non-resident  of  the  county,  or  his  place  of  residence 
is  unknown,  then  such  notice  shall  be  published  for  not  less  than 
ten  days  in  a  newspaper  of  general  circulation  in  such  county, 
and  in  such  case  the  suit  may  be  brought  after  ten  days  from 
the  first  publication;  and  the  judgment  obtained  shall  be  a  lien 
upon  the  freight,  to  satisfy  which,  with  costs  of  suit,  the  same 
shall  be  sold.     Id.  sec.  3226. 

Storage  aud  lien  therefor : 

Such  person,  association,  or  company,  after  the  expiration 
of  ten  days  from  the  receipt  of  goods  at  the  place  to  which  they 
are  consigned,  may,  upon  giving  or  depositing  the  notice  pro- 
vided in  section  thirty-tivo  hundred  and  ticenty-one,  and  the  ex- 
piration of  ten  days,  charge  a  fair  and  reasonable  cost  for  stor- 
age, which  shall  be  a  lien  upon  the  goods  so  stored,  and  such 
person,  association,  or  company  may,  after  the  expiration  of 
said  ten  days,  deliver  such  goods  to  any  warehouseman  or 
storage  merchant  at  the  point  of  destination  of  such  goods  or 
merchandise,  or  in  case  there  be  no  responsible  warehouseman 
or  storage  merchant  at  such  point  willing  to  receive  the  goods, 


OHIO.  (•.:',:', 

then  at  the  most  convenient  ])()int  where  storap;e  can  be  effected, 
and  receive  from  such  warehouseman  the  freight  and  charges 
due  such  raih'oad  or  otlier  comj)any  upon  the  same,  n<itifvinK 
the  owner  or  consignee  of  such  storage,  wiien  tcnown,  in  the 
manner  provided  in  section  thirty-two  hundred  and  Iwenly-one, 
and  the  advances  made,  and  all  reasonable  charges  for  storage 
shall  be  a  lien  upon  the  goods  so  stored.     Id.  .sec.  3227. 

Copy  of  notice,  sale  bill,  etc.,  to  be  kept ; 

Such  person,  association,  or  company  shall  keep  a  copy  of  the 
notice,  a  copy  of  the  sale  bill,  and  the  expenses  thereof,  pro- 
portional to  each  article  sold,  and  also  the  oath  of  the  claimant 
of  the  residue  of  the  proceeds  as  aforesaid,  and  shall  furnish 
an  inspection  of  the  same,  and,  if  required,  copies  thereof  to 
any  one,  on  payment  of  the  proper  charges  therefor.  Id.  sec. 
3228. 

Sale  of  perishable  articles : 

If  any  perishable  property  be  so  conveyed  as  freight,  and 
remain  unclaimed  until  in  danger  of  great  depreciation,  or  the 
same  be  refused,  or  the  owner  thereof  cannot  be  found,  then 
such  person,  association  or  company  may  sell  the  same  at  j)rivate 
sale,  or  auction,  without  giving  notice,  for  the  best  i)rice  it  will 
bring,  and  apply  the  proceeds   as  aforesaid.     Id.  sec.  3229. 

Above  section  constrned  : 

Live  stock  is  perishable  property  within  the  meaning  of  above 
section,  and  may  be  sold  when  no  owner  can  be  found.  Town- 
ship Trustees  v.  Brighton  Stock  Yards  Co.,  27  0.  S.  435. 

Within  what  time  property  may  be  claimed  : 

If  the  owner  of  any  such  property,  at  any  time  within  five 
years,  reclaim  the  same,  and  produce  satisfactory  evidence  to 
the  auditor  of  state  of  his  ownership  thereof,  the  auditor  shall 
draw  his  warrant  in  favor  of  such  person  ujwn  the  treasurer  of 
state  for  the  amount  paid  into  the  state  treasury.  Bates'  An- 
notated Ohio  Stats.  1900,  sec.  3230. 

Penalty  for  neglect  to  comply  with  i)rovisions  : 

Any  such  person,  association  or  company  who  refuses  or  neg- 


634  OHIO    LAWS. 

lects  to  perform  any  of  the  duties  required  by  this  chapter,  with 
the  intent  to  avoid  the  provisions  thereof,  shall  forfeit  and  pay 
a  sum  not  less  than  one  hundred  dollars,  nor  more  than  five 
hundred  dollars,  at  the  discretion  of  the  court,  to  be  recovered 
for  the  use  of  common  schools  in  the  county  in  which  the  prin- 
cipal office  of  such  person,  association,  or  company  is  located, 
and  shall,  moreover,  be  liable  to  any  person  injured  thereby  in 
double  the  value  of  the  property.     Id.  sec.  3231. 

Authorizing  certain  corporations  to  purchase  or  lease  real 
estate : 

A  corporation  organized  for  the  purpose  of  constructing  and 
maintaining  buildings  to  be  used  for  hotels,  storerooms,  offices, 
warehouses,  factories,  shall  be  authorized  to  acquire  by  pur- 
chase or  lease,  and  to  hold,  use,  mortgage  and  lease  all  such 
real  estate  or  personal  property  as  may  be  necessary,  for  the 
purpose  hereinbefore  mentioned;  provided,  how-ever,  that  no 
such  corporation  shall  acquire  or  mortgage  any  real  or  lease- 
hold estate,  or  lease  the  same  for  a  period  exceeding  (with  all 
privileges  of  renewal)  the  term  of  five  years,  without  the  con- 
sent of  the  holders  of  two  thirds  of  the  stock,  obtained  at  a 
meeting  called  for  that  purpose,  written  notice  of  which  shall 
have  been  given  to  each  stockholder,  either  personally,  or  de- 
posited in  the  post-office,  properly  addressed  and  duly  stamped, 
not  less  than  ten  days  before  the  day  fixed  for  such  meeting. 
Nothing  herein  shall  be  construed  as  authorizing  corporations 
to  buy  and  sell,  or  to  deal  in  real  estate  for  profit.     Id.  sec.  3884a. 

Authorizing  railroad  companies  to  issue  storage  or  ware- 
house certificates : 

Any  railroad  company,  organized  under  the  laws  of  this  state, 
upon  the  receipt  of  iron  ore  or  grain  or  other  merchandise  from 
any  vessel,  water-craft  or  other  source  for  storage  and  deposit, 
duly  consigned  to  said  company  may,  upon  the  request  or  de- 
mand of  the  owmer  or  ow^ners  of  said  ore,  grain  or  other  mer- 
chandise, and  with  the  written  consent  of  the  consignee,  issue 
to  the  owner  or  owners  of  said  ore,  grain  or  other  merchandise, 
a  certificate,  receipt  or  voucher,  which  certificate,  receipt  or 
voucher,  shall  name  the  railway  company  by  whom  said  ore  or 


OHIO.  G3o 

grain  or  other  merchandise  is  held  at  the  time  said  certificate, 
receipt  or  vouclier  is  issued,  to  whom  said  ore,  grain  or  otlier 
merchandise  was  consigned,  the  (luantity  licld  by  said  company, 
and  so  near  as  may  be  the  quahty  or  grade  tiiereof,  but  not  in- 
curring any  habihty  for  the  grade  or  quality,  which  certificate, 
receipt  or  voucher,  shall  be  signed  by  the  president  or  vice- 
president  of  said  company,  and  countersigned  by  the  genera! 
agent  of  said  company  appointed  for  that  purpose,  or  such  other 
officers  as  may  be  appointed  by  said  railroad  comijany,  and 
shall  be  transferable  and  negotiable  by  indorsement  thereon, 
by  the  person  or  persons  to  whose  order  the  same  is  made  pay- 
able. That  on  the  presentation  of  said  certificate,  receipt  or 
voucher,  so  indorsed  to  said  railroad  company  at  its  general 
office,  (by)  the  holder  or  holders  thereof  and  on  demand,  the 
said  railway  company  shall  delivcM-  to  said  holder  or  holders,  the 
iron  ore  or  grain  or  other  merchandise  so  described  therein,  on 
the  payment  by  such  person  or  jiersons  to  said  railway  company 
(of)  all  proper  charges  thereon.     Id.  sec.  3378/. 

False  or  fictitious  bills  of  lading  : 

Whoever  executes  and  delivers  to  any  person  any  false  or 
fictitious  bill  of  lading,  receipt,  schedule,  invoice,  or  other  writ- 
ten instrument,  to  the  purport  or  effect  that  any  property  usually 
transported  by  carriers  had  been  or  was  held,  delivered,  re- 
ceived, or  deposited  on  board  of  any  steamboat  or  watercraft 
navigating  the  waters  in  or  bordering  upon  the  state  of  Ohio, 
or  at  the  freight  office,  depot,  station,  or  other  place  designated 
or  used  by  any  railroad  company,  or  other  common  carrier  for 
the  reception  of  any  such  property,  when  such  projierty  was  not 
held,  or  had  not,  in  fact  and  in  good  faith,  been  delivered,  re- 
ceived, or  deposited  on  board  such  steamboat,  or  other  water- 
craft,  or  at  such  place,  at  the  time  such  written  instrument  wa.*? 
made  and  delivered,  with  intent  to  defraud;  or  indorses,  assigns, 
transfers,  or  puts  off.  or  attempts  to  indorse,  as.sign.  transfer, 
of  put  off,  any  such  false  or  fictitious  bill  of  lading,  receipt,  in- 
voice, schedule,  or  other  written  instrument,  knowing  the  same 
to  be  false,  fraudulent,  or  fictitious,  i^hall  be  imi^risoned  in  the 
penitentiary  not  more  than  four  years  nor  less  than  one  year. 
Id.  sec.  7085. 


636  OHIO    LAWS. 

False  or  lictitious  wareliouse  receipts : 

Whoever  executes  and  delivers  to  any  person  any  false  or 
fictitious  warehouse  receipt,  acknowledgment,  or  other  instru- 
ment of  writing,  to  the  purport  and  effect  that  any  person  held 
or  had  received  in  store,  or  held  or  had  received  in  any  ware- 
house, or  in  any  other  place,  or  held  or  had  received  in  posses- 
sion, custody,  or  control,  any  goods,  wares,  or  merchandise, 
when  such  goods,  wares,  or  merchandise  were  not  held,  or  had 
not  been  received,  in  good  faith,  by  such  person,  with  intent  to 
defraud;  or  indorses,  assigns,  transfers,  or  delivers,  or  attempts 
to  indorse,  transfer,  or  deliver  to  any  person,  any  such  false  or 
fictitious  warehouse  receipt,  acknowledgment,  or  instrument 
of  wTiting,  knowing  the  same  to  be  false,  fraudulent,  or  fictitious, 
shall  be  imprisoned  in  the  penitentiary  not  more  than  three 
years  nor  less  than  one  year.     Id.  sec.  7086. 

Appointment  of  tobacco  inspector  : 

The  probate  court  of  any-  county,  upon  application  of  the 
proprietor  of  any  leaf  tobacco  commission  warehouse,  who  offers 
for  sale  tobacco  at  public  auction,  shall  qualify  the  appointee 
of  such  commission  warehouse  of  one  or  more  suitable  persons, 
well  skilled  in  the  inspection  of  leaf  tobacco,  to  act  as  inspectors 
and  weighers  of  tobacco  at  such  commission  warehouse  to  serve 
as  such  during  the  pleasure  of  such  warehouseman,  and  until 
successors  shall  be  appointed  and  qualified,  and  the  court  shall 
thereupon  also  grant  a  license  to  the  proprietor  of  such  ware- 
house to  conduct  his  business  in  accordance  with  the  provisions 
of  this  chapter.     Id.  sec.  4334. 

Exemption  from  duty  for  auction  sales : 

No  duty  or  tax  shall  l)o  imposed  or  collected  for  sales  of 
tobacco  at  auction  at  such  warehouse.     Id.  sec.  4335. 

Warehouseman's  bond : 

Before  granting  any  license  for  the  establishment  of  a  tobacco 
warehouse,  the  court  shall  require  the  proprietor  of  such  ware- 
house to  enter  into  bond,  payable  to  the  state,  in  the  penal  sum 
of  twenty  thousand  dollars,  with  at  least  one  sufficient  surety, 
resident  in  the  county,  conditioned  for  the  faithful  discharge 


OHIO.  ,j;^7 

of  all  duties  devolved  upnu  him  by  this  clKiptcr,  wliidi  shall 
be  filed  at  the  probate  eouit  j;iaiiting  the  license  for  the  usr  of 
any  person  who  may  be  aggrieved  by  the  non-fullihncnt  of  such 
duties.     Id.  sec.  4336. 

Fees  for  issuing?  license,  etc : 

The  fees  for  issuing  such  license  shall  be  five  dcjllars,  and 
for  appointing  inspectors  and  approving  their  bonds,  three  dol- 
lars.    Id.  sec.  4337. 

Entry  of  appointment  on  journal : 

The  court  shall  cause  an  entry  of  the  appointment  of  an  in- 
spector to  be  made  on  the  journal  of  the  court,  and  a  certi(icat<! 
of  his  appointment,  under  the  seal  of  the  court,  shall  be  deliv- 
ered to  the  person  so  a])pointed.     Id.  sec.  4338. 

Form  of  inspector's  oath  : 

Every  inspector  of  tobacco,  before  he  acts  as  such  shall, 
under  the  penalty  of  three  hundred  dollars,  take  the  follow- 
ing oath  of  office:  "I,  A.  B.,  appointed  inspector  of  tobacco  at 

warehouse,  do  swear  that  I  will,  in  all  things,  faithfully 

discharge  my  duty  in  the  office  of  inspector  according  to  the 
best  of  my  skill  and  judgment,  according  to  law,  without  fear, 
favor,  affection,  malice,  or  partiality,  so  help  me  God;"  which 
oath  any  justice  of  the  peace  may  administer,  a  copy  of  which 
shall  be  transmitted  to  the  court  appointing  the  inspector, 
within  ten  days  from  the  time  the  oath  has  been  administered. 
Id.  sec.  4339. 

Inspector's  bond  : 

Every  such  inspector  and  weigher,  before  he  executes  any 
part  of  his  duty,  shall,  under  the  penalty  of  eight  hundred 
dollars,  enter  into  bond  in  the  penal  sum  of  two  thousand 
dollars,  to  the  satisfaction  of  the  j^robate  judge,  with  sufficient 
sureties,  payable  to  the  state  for  the  u.se  of  any  |)erson  injured 
by  the  neglect  or  misconduct  of  such  inspector  and  weigher, 
with  condition  that  such  inspector  will  diligently  and  carefully 
uncase  and  break  in  at  least  four  places,  or  cause  the  s^ame  to 
be  done,  in  his  presence,  view  and  examine  all  tobacco  brought 
to  the  warehouse,  at  which  he  is  inspector  and  weigher,  which 


«338  OHIO    LAWS. 

he  is  called  on  to  view,  weigh  and  inspect,  at  such  warehouse, 
or  any  other  public  warehouse;  and  that  he  will  not  receive, 
weigh,  pass,  or  mark  any  tobacco,  or  hogshead,  barrel,  box, 
or  case  of  tobacco,  prohibited  by  this  chapter,  and  that  he  will, 
in  all  things,  well  and  faithfully  discharge  and  execute  his  duty 
in  the  office  of  inspector  and  weigher,  according  to  the  provi- 
sions of  this  chapter,  which  bond  shall  be  deposited  with  the 
said  probate  judge,  who  shall  file  the  same  in  his  office,  and  any 
person  injured  may  bring  suit  thereon  for  a  breach  thereof. 
Id.  sec.  4340. 

Above  section  construed : 

The  contention  that  the  inspectors  appointed  under  ch.  6, 
title  5,  of  the  Revised  Statutes  as  amended  April  20,  1881  (78 
0.  Law,  242),  have  the  exclusive  right  to  inspect  tobacco  in 
all  the  warehouses  belonging  to  the  members  of  a  certain  board 
of  trade,  cannot  be  maintained.  The  tobacco  which  such  in- 
spectors are  required  to  inspect  is  limited  to  such  tobacco  as 
they  may  be  "called  on  to  view,  weigh  and  inspect,  at  such 
warehouse,  or  any  other  public  warehouse."  Sec.  4340,  above; 
The  State  v.  Casey,  38  0.  S.  555. 

Fees  of  inspector : 

There  shall  be  allowed  to  inspectors  of  tobacco,  appointed  by 
virtue  of  this  chapter,  the  sum  of  twenty-five  cents  for  each 
hogshead,  box,  or  case  of  tobacco  inspected,  to  be  paid  by  the 
owner  or  agent  delivering  the  same  at  the  warehouse,  and  to 
the  proprietor  or  proprietors  of  such  warehouse,  two  dollars 
and  fifty  cents  per  hogshead,  and  one  dollar  per  box  or  case, 
for  receiving,  storing,  weighing,  marking,  selling  at  pubhc  out- 
cry or  at  private  sale,  at  the  request  of  the  owner  or  consignor, 
and  collecting,  one  half  of  which  shall  be  paid  by  the  owner  or 
consignor,  and  the  other  half  by  the  purchaser  of  the  tobacco, 
and  no  proprietor  of  a  warehouse  shall  be  bound  to  deliver  any 
tobacco  stored  with  him  until  such  charges  and  the  inspector's 
fees  are  paid.     Bates'  Annotated  Ohio  Stats.   1900,  sec.  4341. 

Penalty  against  inspector  for  speculating : 

No  inspector  shall,   directly  or  indirectly,   during  his  con- 


OHIO.  639 

tinuance  in  office,  buy  or  receive  any  tobacco  by  way  of  barter, 
loan  or  exchange  or  in  any  way  niedtlle  witli,  or  busy  himself 
in  procuring  tobacco  to  be  sold  or  consigned  to  any  nicrdiant, 
except  tlie  tobacco  owned  by  such  inspector,  under  the  j>enalty 
of  one  hundred  dollars  for  every  hogsheatl  of  tobacco  so  brought 
or  received,  or  procured  to  be  sold  or  consigned  contrary  to  this 
chapter;  but  any  inspector  may  receive  his  fees  for  inspection, 
and  his  proper  rents  or  debts  in  tobacco.     Id.  sec.  4342. 

Penalty  against  altering,  etc.,  inspector's  marks  : 

Whoever  willfully  erases  or  in  anywise  alters  or  defaces  any 
letter,  mark,  number  or  figure  placed  upon  any  hogshead  of 
tobacco  by  an  inspector,  or  in  any  manner  counterfeits  any 
letter,  mark,  number,  or  figure,  on  any  such  hogshead  of  to- 
bacco, shall  forfeit  and  pay  one  htmdred  dollars  for  every  such 
offense.     Id.  sec.  4343. 

Penalty  against  inspector  for  taking  illegal  fees,  etc. : 

An  inspector  who  accepts  or  receives,  directly  or  intlirectly, 
any  gratuity  or  reward  for  anything  done  by  him  in  pursuance 
of  this  chapter,  other  than  his  fees,  as  in  this  chapter  defined, 
shall  forfeit  and  pay  the  sum  of  three  hundred  dollars,  and  be 
disabled  from  holding  the  office  of  inspector;  and  whoever  offers 
a  gratuity,  reward  or  bribe  to  an  inspector  for  anything  by 
such  inspector  to  be  done  in  pursuance  of  this  chapter,  shall, 
for  every  such  offense,  forfeit  and  pay  three  hundred  dollars. 
Id.  sec.  4344. 

Penalty  against  inspector  for  neglect  : 

An  inspector  who  neglects  or  refuses  to  attend,  as  directed 
by  this  chapter,  unless  prevented  by  sickness  or  unavoidable 
accident,  shall  forfeit  and  pay  to  the  party  nggrievcfl  twenty 
dollars  for  every  neglect  or  refusal,  or  shall  be  liable  to  an  ac- 
tion by  the  party  aggrieved,  to  recover  all  damages  sustained 
by  reason  of  any  such  neglect  or  refusal,  together  with  costs. 
Id.  sec.  4345. 

Duties  of  inspector : 

Every  inspector  shall  uncase  and  break  every  hogshead,  bar- 
rel, package,  case,  or  box  of  tobacco,  or  cause  the  same  to  be 


t)40  OHIO    LAWS. 

done  in  his  presence,  which  he  may  be  called  on  to  inspect,  and 
weigh  in  not  less  than  four  different  places;  and  if  the  said  in- 
spector and  weigher  is  of  the  opinion  that  such  tobacco  is 
sound,  clean,  in  good  order  and  condition,  and  merchantable, 
he  shall  weigh  or  cause  the  same  to  be  weighed  in  his  presence, 
on  scales  with  weights,  which  he  shall  mark  or  cause  to  be 
marked  on  the  head,  side  or  bulge  thereof,  with  the  name  of  the 
warehouse,  the  tare  of  the  hogshead,  barrel,  box,  or  package, 
and  quantity  of  net  tobacco  therein  contained,  and  also  mark 
on  the  head  of  the  hogshead,  barrel,  or  package,  with  the  initials 
of  the  name  of  the  owner,  and  the  number  of  the  hogshead, 
barrel,  box,  or  package  there  inspected.     Id.  sec.  4346. 

Inspector  to  select  samples,  one  for  purchaser  and  one  to 
be  returned  and  preserved  : 

The  inspector  shall  select  two  fair  samples  of  each  hogshead, 
barrel,  box,  or  package  of  tobacco,  by  him  inspected,  and  passed 
as  sound  and  merchantable,  which  samples  shall  consist  of  not 
less  than  six  hands  or  bundles,  and  each  of  which  he  shall  bind 
together  with  a  cord,  and  attach  a  label  thereto,  on  which  shall 
be  written  the  name  of  the  person  for  whom,  or  in  whose  name 
the  tobacco  is  inspected,  together  with  the  number  of  the  pack- 
age, the  gross  weight,  tare  and  net  weight  of  the  tobacco,  one 
of  which  samples  shall  be  delivered  to  the  purchaser  of  the 
tobacco,  with  a  note  or  certificate  hereinafter  provided  for,  and 
the  other  of  which  samples  said  inspector  shall  retain  and  care- 
fully preserve  for  one  year  after  such  inspection.     Id.  sec.  4347. 

Record  of  inspection  to  be  kept : 

The  inspector  shall  carefully  enter,  or  cause  to  be  entered, 
in  a  book  to  be  provided  and  kept  for  that  purpose,  every  hogs- 
head of  tobacco  viewed,  passed  and  marked  by  him,  and  the 
quality  thereof,  mark  and  warehouse  number,  with  the  gross, 
tare  and  net  weight  of  all  such  tobacco.     Id.  sec.  4348. 

Re-assortment  of  tobacco  rejected  by  inspector : 

If  a  hogshead  of  tobacco  is  brought  to  any  warehouse  for 
inspection,  and  the  inspector  refuse  to  receive  and  pass  the 
same,  the  owner  or  other  person  bringing  such  tobacco  will 


OHIO.  641 

undertake  to  pick  and  separate  the  pood  from  the  bad,  the  in- 
spector shall  allow  the  use  of  one  or  iiioi(.  of  liis  prizes  for  priz- 
ing such  tobacco,  so  separated  and  repacked  in  such  hogsiieads; 
and  if  there  are  several  hogsheads  of  tobacco,  belonging  to  sev- 
eral owners,  to  be  packed,  repacked  and  prized  at  any  public 
warehouse,  the  owner  or  other  person,  whose  tobacco  is  first 
examined  and  refused,  on  bringing  the  same,  siiall  be  first  i)er- 
mitted  to  make  use  of  such  prize;  and  the  same  rule  shall  be 
observed  in  prizing  all  tobacco  picked  and  prized  as  aforesaid. 
Id.  sec.  4349. 

Penalty  against  inspector  for  appropriating  samples,  etc. : 

No  inspector  shall  take  and  convert  to  his  own  use  or  other- 
wise dispose  of  any  draughts  or  samples  of  tobacco  drawn  out 
of  any  hogshead,  but  the  same  shall  be  delivered  to  the  owner 
or  other  person  offering  the  same  for  inspection,  under  the 
penalty  of  seventy-five  cents.     Id.  sec.  4350. 

Storage  fees : 

When  any  hogshead,  box,  or  case  of  tobacco  has  remained 
in  any  warehouse,  licensed  under  this  chapter,  for  a  longer 
period  than  three  months,  the  proprietor  shall  be  entitled  to 
charge  additional  storage  on  tlie  same  at  the  rate  of  twenty 
cents  per  month,  for  each  hogshead,  box,  or  case,  and  a  lien  is 
hereby  created  in  his  favor  for  such  storage,  and  all  other  charges 
on  all  tobacco  delivered  at  his  warehouse.     Id.  sec.  4351. 

Warehouseman  to  give  receipt : 

Proprietors  of  warehouses  licensed  under  the  provisions  of 
this  chapter  shall  immediately  upon  the  delivery  of  every  hogs- 
head, box  or  case  of  tobacco  at  any  such  warehouse,  weigh  and 
give  receipt  for  the  same  if  required  by  the  owner  or  person 
bringing  the  same,  which  shall  be  given  up  on  the  sale  or  re- 
delivery of  such  tobacco.     Id.  sec.  4352. 

Inspector's  receipt : 

The  inspector  who  passes  any  tobacco  shall  deliver  to  the 

owner  as    many  notes  as  may  be  required,  not  exceeding  one 

note  or  receipt  for  each  hogshead  or  cask,  which  note  or  receipt 

shall  express  the  time  and  place  of  reception,  the  mark,  the  ware- 

41 


1142  OHIO    LAWS. 

house  number,  gross,  tare  and  net  weight  for  all  tobacco  in- 
spected and  passed  whether  of  the  first  or  second  quality;  the 
first  quality  to  consist  of'  tobacco  clear  of  and  unmixed  with 
trash;  and  the  tobacco  for  which  such  note  calls  shall  be  de- 
livered to  the  owner  or  bearer  thereof  on  demanding  the  same 
and  giving  up  such  note.     Id.  sec.  4353. 

Penalty  against  forging,  etc.,  inspector's  receipt : 

Any  person  who  forges  or  counterfeits  any  receipt  or  note  of 
any  inspector,  or  alters  the  description  of  the  quantity  or  quality 
of  tobacco  expressed  in  such  receipt  or  note,  or  offers  in  trans- 
fer or  sale  such  forged,  counterfeit  or  altered  receipt  or  note, 
knowing  the  same  to  be  forged,  counterfeited  or  altered,  shall 
be  proceeded  against  in  the  same  manner,  and  be  suliject  to  the 
same  punishment,  as  though  he  had  forged  a  promissoiy  note 
for  the  payment  of  money.     Id.  sec.  4354. 

Penalty  against  inspector  for  issning  false  receipt : 

No  inspector  shall,  on  any  pretense,  give  out  any  note  or 
receipt  for  tobacco,  unless  he  has  recei^'ed  and  passed  the  full 
cjuantity  of  tobacco,  for  which  such  note  or  receipt  is  given, 
under  the  penalty  of  one  hundred  dollars  for  every  such  offense. 
Id.  sec.  4355. 

Placing  in  packages  other  substance  than  tobacco : 

Any  person  or  persons,  who  shall  intentionally  place,  or  cause 
to  be  placed,  in  any  hogshead,  barrel,  box,  package,  or  parcel 
of  leaf  tobacco,  any  substance  other  than  tobacco,  with  intent 
that  the  said  hogshead,  barrel,  box,  package,  or  parcel  shall  be 
exposed  to  sale,  or  sold,  and  with  tlie  intent  that  the  purchaser 
thereof  shall  purchase  the  same  in  ignorance  of  the  presence 
of  such  foreign  substance,  or  if  any  person  shall  falsely  pack, 
or  cause  to  be  falsely  packed,  in  a  manner  commonly  known 
as  "  nesting,"  any  hogshead,  box,  package,  or  parcel  of  leaf 
tobacco  with  the  intent  that  the  same  shall  be  exposed  for 
sale  or  sold,  and  with  intent  that  the  purchaser  thereof  shall 
purchase  the  same  in  ignorance  of  its  real  character,  or  if  any 
person  shall  delivei*,  or  cause  to  be  delivered,  any  hogshead, 
box,   package,   or  parcel   of  tobacco,   containing  such   foreign 


OHIO.  648 

substance,  or  falsely  packed,  and  nested  tobacco,  to  ;iiiy  ware- 
houseman, commission  merchant,  or  dealer  in  tobacco,  or  iiiaim- 
facturer  thereof,  to  be  sold  knowinji;  it  to  contain  such  foreij^n 
substance,  or  to  be  so  falsely  packed,  or  nested,  with  intent 
that  the  same  shall  be  sold  to  purchasers  ignorant  of  its  real 
character,  or  if  any  person  shall  change  or  alter  in  any  way 
any  sample  selected  by  the  inspector,  as  provided  in  section 
fow  thousand  three  hundred  and  forty-seven  with  intent  thereby 
to  defraud  anj'-  purchaser  or  other  person,  the  jhtsou  or  persons 
so  offemhng  shall  be  deemed  guilty  of  a  misdemeanor,  and  shall 
forfeit  and  pay  a  fine  of  not  less  than  one  hundi-ed,  nor  more 
than  five  hundred  dollars,  or  be  imprisoned  in  the  jail  of  the 
county  wherein  the  offense  was  committed,  not  less  than  thirty 
days,  nor  more  than  six  months,  or  fined  and  imprisoned  both, 
at  the  discretion  of  the  court,  and  shall  also  be  liable  to  the 
inspector  and  the  person  injured  thereby  in  a  civil  action  for 
the  amount  of  such  injury.     Id.  sec.  4355a. 

Proprietor  of  tobacco  warehouse  liable  for  failure  of  sam- 
ples to  represent  package  : 

The  i^roprietor  of  any  such  commission  leaf  tobacco  warehoase 
shall  (each)  be  held  liable  to  the  purchaser  of  any  hogshead, 
barrel,  package,  box  or  parcel  of  tobacco,  inspected  and  weighed 
at  his  warehouse,  for  the  failure  of  the  samples  drawn  therefrom 
to  represent  the  tobacco  packetl  therein,  and  in  like  manner 
shall  be  liable  for  vmderweight  existing  in  such  tobacco  in- 
spected, and  marked  by  such  inspector  as  required  by  the  pro- 
visions of  this  chapter.     Id.  sec.  43556. 

Failure  of  proprietor  of  tobacco  warehouse  to  give  bond, 
etc. : 

Any  proprietor  of  any  such  leaf  tobacco  warehouse,  who 
refuses  or  neglects  to  procure  a  license,  and  appointment  of  such 
inspector  and  weigher  of  tobacco,  at  his  warehouse,  as  provided 
for  in  section  four  thonmnd  three  hundred  and  thirln-fnur,  or 
neglects  or  refuses  to  perform  any  of  the  duties  reiiuired  of  him 
by  the  provisions  of  this  chapter,  shall  forfeit  and  pay  n  jienalty 
of  not  less  than  fifty  nor  more  than  one  thousand  dollars,  at 
the  discretion  of  the  court;  and  each  day's  continuance  in  busi- 


644  OHIO    LAWS. 

ness,  after  written  notice  of  such  omission,  shall  be  deemed  an 
additional  offense  within  the  provisions  of  this  section.  Id.  sec. 
4355c. 

Burglary — Attempts  at  burglary — Having  possession  of 
burglar's  tools : 

Whoever,  in  the  night  season,  maliciously  and  forcibly  breaks 
and  enters,  or  attempts  to  break  and  enter,  any  dwelling-house, 
kitchen,  smoke-house,  shop,  office,  store-house,  ware-house, 
malt-house,  still-house,  mill,  pottery,  factory,  water-craft,  school- 
house,  church  or  meeting-house,  barn  or  stable,  railroad  car,  car 
factory,  station-house,  hall  or  any  other  building,  with  intent 
to  commit  a  felony,  or  with  intent  to  steal  property  of  any  value, 
shall  be  imprisoned  in  the  penitentiary  not  more  than  ten  years, 
nor  less  than  one  year ;  and  if  any  person  shall  have,  or  keep  in 
his  possession,  any  tools,  implements,  or  other  things  used  by 
burglars  for  house-breaking,  forcing  doors,  windows,  locks,  or 
buildings,  or  other  places  where  goods,  wares,  merchandise  or 
money  is  kept,  with  the  intention  of  using  such  tools  or  imple- 
ments burglariously,  shall  be  confined  in  the  penitentiary  not 
more  than  five  years,  nor  less  than  one  year.     Id.  sec.  6835. 

Above  section  construed : 

A  house  used  exclusively  for  storing  goods  is  a  warehouse, 
although  the  building  had  been  constructed  and  formerly  used 
for  another  purpose,  and  although  the  goods  were  owned  by 
the  tenant.     Allen  v.  The  State,  10  0.  S.  287. 

Entering  house,  etc.,  in  day-time  or  night  season,  and  at- 
tempting to  commit  felony — How  punished  : 

Whoever  maliciously,  either  in  the  day-time  or  night  season, 
enters  any  dwelling-house,  kitchen,  shop,  store-house,  malt- 
house,  still-house,  mill,  office,  treasury,  bank,  railroad  car,  pot- 
tery, water-craft,  schoool-house,  church  or  meeting-house, 
smoke-house,  barn  or  stable,  and  attempt  to  commit  a  felony, 
shall  be  imprisoned  in  the  penitentiary  not  more  than  two  years 
nor  less  than  one  year.  Bates'  Annotated  Ohio  Stats.  1900, 
sec.  6836. 

Above  section  construed : 

Under  the  above  a  defendant  was  indicted  for  maliciously 


OHIO.  64o 

entering  a  storehouse,  and  atteniiHing  to  steal  personal  jjrop- 
erty  of  the  value  of  more  than  thirty-five  dollars.  He  was 
found  guilty  and  sentenced  to  the  penitentiary.  A  motion  to 
reverse  on  the  ground  that  the  crime  for  which  defendant  was 
indicted  was  not  embraced  within  the  above  section,  held  to 
have  been  properly  overruled.     Griffin  v.  The  State,  34  0.  S.  299. 

Bre<akiii^  into  buildini?  in  day-time  to  steal : 

Whoever  maliciously,  in  the  day-time,  breaks  and  enters  any 
dwelling-house,  kitchen,  shop,  store,  ware-house,  malt-house, 
still-house,  mill,  factory,  pottery,  water-craft,  school-hou.se, 
church  or  meeting-house,  smoke-house,  barn,  stable,  railroad 
car,  car  factory,  depot,  station-house,  hen-house,  wagon-house, 
sugar-house,  boat-house,  grain-house,  or  green-house,  with  in- 
tent to  steal,  shall  be  fined  not  more  than  three  hundred  dol- 
lars, or  imprisoned  not  more  than  six  months  or  both.  Bates' 
Annotated  Ohio  Stats.  1900,  sec.  6837. 


646  OHIO   DECISIONS. 

DECISIONS  AFFECTING  WAREHOUSEMAN. 

Bailment  and  sale — Mixing  of  grain — Consent  of  parties  or 
custom  of  trade — Liability  for  loss. 

Where  a  warehouseman  receives  wheat,  and  by  the  con- 
sent of  the  owner,  or  in  accordance  with  the  custom  of  trade, 
mixes  the  wheat  in  a  common  mass  with  the  other  wheat  in  his 
warehouse,  and  with  the  understanding  that  he  is  to  retain  oi 
ship  the  same  for  sale  on  his  own  account,  at  pleasure,  and  on 
presentation  of  the  w^arehouse  receipt  is  either  to  pay  the  market 
price  thereof  in  money,  or  redeliver  the  wheat,  or  other  wheat 
in  place  of  it;  the  transaction  is  not  a  bailment  but  a  sale,  and 
the  property  passes  to  the  depositary,  and  carries  with  it  the 
risk  of  loss  by  accident.  CJiase  v.  Washburn,  1  0.  S.  244.  See 
O'Dell,  Assignee,  v.  Leyda  et  ai,  46  0.  S.  244. 

Sarn  e — Same — Receipt  construed. 

A  warehouseman  received  a  large  quantity  of  wheat  from  the 
plaintiff  and  issued  a  receipt  in  the  following  words:  "New 
London,  Ohio,  August  18,  lcS91 .  Received  in  store  from  A.  Gibb, 
403  45-60  bushels  of  wheat,  which  we  store  at  ^  cent  per  bushel 
per  month,  and  we  are  to  have  at  the  market  price  when  called 
for,  unless  we  prefer  to  furnish  the  grain.  Subject  to  the  order 
of  A.  Gibb  on  the  surrender  of  this  receipt  and  the  payment  of 
charges.  To  be  kept  insured  by  us.  No.  66.  Dean  &  Lilly." 
Subsequently,  the  warehouseman  went  into  the  hands  of  a  re- 
ceiver and  the  warehouse  and  contents  were  destroyed  by  fire. 
The  plaintiff  demanded  the  wheat  of  the  receiver  and  upon  his 
refusal  to  deliver  brought  an  action  against  him  for  the  value 
thereof.  It  appeared  that  in  accordance  with  the  consent  and 
understanding  of  the  parties,  the  wheat  was  mingled  with  other 
wheat  of  like  kind  and  quality  and  that  the  warehouseman  had 
no  doubt  shipped  the  identical  wheat  received  from  the  plain- 
tiff prior  to  the  destruction  of  his  warehouse.  Held  that  this 
transaction  constituted  a  sale  and  not  a  bailment ;  it  was  a  sale 
in  which  the  warehouseman  was  to  pay  for  the  wheat  either  in 
money  or  in  other  wheat.     The  doctrine  laid  down  in  Chase  v. 


OHIO.  f]47 

Washburn,  1  0.  S.  244,  followcci.    Gibh  v.  Townsend  liter     9 
C.  C.  0.  409. 

Same — Same — Bailment. 

Plaintiff  stored  wheat  with  a  warehouseman  and  took  there- 
for a  receipt  in  the  following  words: 

"Big  Prairie,  Sept.  9,  '82. 
"  Ree'd  of  George  Ledya  173  bu.  20-60  one  hundred  &  seventy- 
three  bus.  twenty  lbs.  of  No.  2  Wheat.     Owner  of  stored  wheat 
at  their  own  risk. 

"  W.  H.  Easterd.w  &  Bro." 

There  was  no  agreement  made  that  the  wheat  should  be  mixed 
with  other  wheat,  or  that  the  warehouseman  might  ship  or  .sell 
or  otherwise  dispose  of  it;  nor  was  there  any  sijecified  time 
agreed  upon  which  the  wheat  should  remain  in  the  warehouse, 
but  it  was  to  be  kept  until  the  plaintiff  was  ready  to  sell.  There 
was  no  charge  made  for  storage.  The  wheat  was  mingled  with 
the  wheat  of  others  deposited  and  the  warehouseman  sold  from 
the  common  mass.  He  always  reserved,  however,  a  greater 
quantity  than  that  deposited  with  him  but  not  the  identical 
wheat.  Subsequently  the  warehouseman  made  an  assignment 
to  the  defendant,  and  the  sheriff  issued  an  execution  against  the 
defendant  attaching  the  wheat  as  tlio  property  of  the  ware- 
houseman in  an  action  against  him.  Whereupon,  the  plaintiff 
depositor  brought  an  action  of  replevin  against  the  a.ssignee 
and  sheriff  for  the  amount  of  wheat.  It  was  held  that  the 
receipt  which  the  warehouseman  had  given  to  the  defendant, 
interpreted  according  to  its  terms  in  commercial  usage,  con- 
stituted a  bailment  and  not  a  sale  and  that  the  plnintiff's  title 
was  not  extinguished  or  transferred  to  the  warehouseman  when 
the  wheat  was  mixed,  with  the  consent  of  the  parties,  with 
wheat  of  like  quality  and  grade  stored  by  others  on  like  terms 
or,  with  the  wheat  belonging  to  the  warehouseman.  Upon  the 
same  principle,  where  a  warehouseman,  who  has  receivefl  on 
deposit  in  his  warehouse,  the  grain  of  others,  to  be  stored  at 
their  risk,  mixes  it  with  his  own,  and  without  authority  from 
them,  sells  from  the  common  mass,  but  never  more  than  his 


648  OHIO   DECISIONS. 

own  quantity,  always  reserving  enough  to  return  to  the  de- 
positors their  proper  quantity  of  the  same  grade  and  quality, 
but  not  the  grain  so  deposited,  the  depositors  may  claim  the 
grain  so  substituted  for  theirs;  and,  if  it  be  for  their  benefit  to 
accept  the  substitution,  such  acceptance  will  be  presumed,  and 
their  title  upheld  against  the  warehouseman  and  his  assignee 
for  the  benefit  of  creditors.  O'Dell,  Assignee,  v.  Ledya  et  al. 
46  0.  S.  244;  Inglebright  v.  Hammond,  19  0.  S.  337. 

Same — Same — Questions  for  the  jury. 

The  plaintiff  brought  an  action  against  the  defendant  ware- 
houseman for  the  value  of  a  quantity  of  wheat  which  he  alleged 
he,  as  executor,  had  sold  to  the  defendant.  He  received  there- 
for weigher's  receipt  in  the  following  words  : 

"Received  of  J.  C.  Plank,  Admr.,  load  of  wheat,  eleven  bush- 
els, five  pounds.     Not  transferable.     Present  this  at  office. 


"Weigher." 

which  was  afterward  exchanged  for  storage  receipt  a  copy  of 
which  is  as  follows : 

"James  &  Neer, 
"Dealers  in  Grain  &  Seed. 
"  No.  240.  DeGraff,  0.,  January  5,  1886. 

"Received  of  Joseph  C.  Plank,  four  hundred  and  fifty-two 
bushels  and  25  pounds  of  wheat  C452  35-100  bushels).  Subject 
to  the  following  rules: 

"Storage  free  until  June  1,  1886.  One  cent  per  bushel  per 
month  or  any  part  thereafter.  All  grains  stored  at  owner's 
risk.  We  will  not  be  responsible  for  loss  or  damage  in  any  way. 
Grain  taken  out  of  house  by  owner,  five  cents  per  bushel  and 

usual  storage. 

"James  &  Neer." 

Without  fault  of  the  defendant  the  warehouse  and  contents  were 
destroyed  by  fire.  The  contention  of  the  defendants  was  that 
the  transaction  was  a  bailment,  and  that,  therefore,  they  were 
not  liable  for  the  value  of  the  wheat.  At  the  trial  of  the  case 
the  court  instructed  the  jury,  after  the  evidence  had  been  given, 


OHIO.  G4H 

to  find  for  the  plaintiff,  for  under  the  undisputod  facts  the 
transaction  was  a  sale.  Judgment  was  rendered  upon  the  ver- 
dict which  was  affirmed  by  the  circuit  court  and  tiie  ca.'^c  brcjught 
to  the  supreme  court  by  writ  of  ernjr.  It  appeared  from  the 
writ  that  evidence  had  been  offered  wliich  tended  to  show  the 
existence  of  a  custom  of  dealing  in  vogue  for  many  years  in  the 
vicinity,  to  the  effect  that  grain  deposited  in  a  warehouse  Utr 
which  weigher's  receipts  were  given  was  regarded  as  grain  in 
store  until  such  receipts  were  presented  to  tlie  office  and  the 
holder  then  had  the  option  to  exchange  weigher's  receij)t  for  a 
storage  receipt  and  continue  the  storage  upon  the  terms  speci- 
fied in  that  form  of  receipt,  or,  to  sell  at  the  j^rice  ruling  at  the 
time  that  such  weigher's  receipts  were  presented;  and  that  the 
receipt  of  the  wheat  and  the  giving  of  weigher's  receipt  did  not 
constitute  a  sale  of  the  wheat,  but  that  it  remained  the  property 
of  the  depositor  until  the  weigher's  receipts  were  presented  at 
the  office  and  an  election  to  sell  made.  The  trial  court  assumed 
that  upon  the  undisputed  facts,  a  sale  was  conclusively  shown, 
and  that  a  question  of  law  only  remained.  It  was  held  that  the 
court  erred  in  this  and  that  the  question  should  have  been  sul)- 
mitted  to  the  jury  to  determine  if  the  understanding  between 
the  parties  was  that  the  contract  was  to  be  a  bailment  or  a  sale. 
That  the  jury  should  have  passed  upon  the  question  as  to 
whether  or  not  the  custom,  as  claimed  by  the  defendant,  actu- 
ally existed  and  was  known  to  the  plaintif!".  To  determine  also 
from  the  other  facts  appearing,  that  the  understanding  was, 
that  although  the  wheat  might  be  mingled  with  other  wheat 
belonging  in  part  to  the  plaintiff  and  part  to  defendant,  yet 
defendants  were  to  sell  from  the  common  mass  from  time  to 
time,  their  portion  only,  always  leaving  sufficient  on  hand  to 
satisfy  all  depositors.  And  if  the  jury  should  find  that  the 
defendants  observed  this  understanding  and,  especially,  if.  in 
addition  to  the  foregoing,  they  further  found  that  a  distinct  un- 
derstanding of  the  parties  was,  by  virtue  of  such  custom,  that  the 
wheat  was  to  be  regarded  as  in  store  until  the  plaintiff  should 
elect  to  make  the  sale  of  it,  then,  if  it  appeared  that  no  demand 
for  the  pay  had  been  made  by  the  presentation  of  receipts  at  the 
office  before  the  fire,  the  jury  would  have  been  justified  in  finil- 


650  OHIO    DECISIONS. 

ing  for  the  defendants.  Therefore,  the  case  was  reversed  and 
a  new  trial  in  accordance  with  instructions  ordered.  James  & 
Neer  v.  Plank,  Exr.,  48  0.  S.  255;  Inglehright  v.  Hammond,  19 
0.  S.  337. 

B. 

Ordinary  care — Questions  for  the  court  and  jury — A^ot  liable  for 
loss  resulting  from  act  of  God. 

Warehousemen  are  obhged  to  exercise  reasonable  and  ordi- 
nary care  in  the  custody  and  safe-keeping  of  property  intrusted 
with  them.  Such  care  must  have  reference  to  the  surrounding 
conditions  and  circumstances.  The  duty  of  a  warehouseman 
is  a  matter  of  law  for  the  court,  what  was  done  by  him  is  a  ques- 
tion of  fact  for  the  jury.  Warehousemen  are  not  liable  for  the  loss 
or  injury  to  goods  resulting  from  the  act  of  God  or  the  public 
enemy  which  could  not  have  been  prevented  by  the  exercise  of 
ordinary  care.     Backus  &  Sons  v.  Start  et  at.,  13  Fed.  Rep.  69. 

I. 

Commingling  and  changing  identity  of  wheat — Warehouseman 
liable. 

In  case  of  a  regular  deposit  of  wheat  with  a  warehouseman, 
which  required  of  the  depositary  the  use  of  ordinary  diligence 
in  taking  care  of  the  wheat,  and  a  redelivery  of  the  same,  on 
demand,  to  the  depositor,  on  being  paid  a  reasonable  compensa- 
tion for  his  services,  the  warehouseman  would  be  hable  to  the 
depositor  for  the  value  of  the  wheat,  in  case  he  mixes  it  wdth 
other  wheat  in  his  warehouse,  and  ships  the  same  for  sale  on 
his  own  account,  notwithstanding  he  may  supply  the  place  of 
the  depositor's  wheat  by  other  wheat  procured  and  deposited 
in  his  warehouse;  and  the  destruction  by  accident  of  the  ware- 
house and  the  wheat  supplied  to  take  the  place  of  the  depos- 
itor's wheat,  will  not  protect  the  warehouseman  from  liabiUty 
to  the  owner.     Chase  et  al.  v.  Washburn,  1  0.  S.  244.* 

N. 

Counterclaim — Evaporation — Conversion — Trover. 

The  plaintiff  deposited  oil  with  the  defendant  upon  a  definite 


♦Note.  "The  case  of  Cha-te  v.  Waahburn,  1  Ohio  State,  244,  has  long  been 
refrarrled  as  a  case  settling  the  law  arising  upon  questions  in  cases  of  this 
kind.'     Gibb  v.  Townsend,  Rec'r,  9  C.  C.  O.  409. 


OHIO.  »;;")! 

agreement  as  to  the  aiuount  to  he  allowed  for  cwiporatioii.  ami 
also  as  to  rates  to  be  chargotl  by  (lit"  <lclciHlaiit  I'or  .storage.  An 
action  in  trov(M-  was  brou-rht  against  the  (Icfciidant  warchoasc- 
man  for  his  failure  to  deliver  the  oil  on  deniantl  and  the  plain- 
tiff sought  to  enforce  the  agreement  of  storage.  The  defendant 
set  up  as  a  defense  the  terms  and  conditions  upon  w  hich  ii  was 
liable  to  redeliver  the  oil ;  setting  forth  the  terms  of  t  lie  agreement , 
so  far  as  they  were  binding  on  the  plaintiff.  Demurrer  was 
filed  to  the  answer  which  was  sustained  and  judgment  rendereti 
for  the  plaintiff.  It  appeared  that  the  petition  alleged  that  the 
defendant  wrongfully  and  unlawfully  converted  the  oil  to  its 
own  use.  The  court  held  that  such  an  attempt  to  turn  the  case 
from  one  of  contract  to  one  of  tort,  and  thereby  to  exclude  set- 
offs, could  not  be  allowed.  That  the  instruction  of  the  court 
that  they  were  to  consider  the  receipts  and  to  allow  such  (h?- 
ductions  in  damages  as  they  should  find  the  reasonalde  charge 
for  storage  amounted  to  and  also  reasonable  deduction  for 
evaporation  was  clearly  in  error.  If  the  receipts  held  in  evi- 
dence and  the  terms  were  binding  on  the  parties,  they  furnished 
the  rule  of  lia])ility  between  them.  Instead  of  rensonahlc  al- 
lowances and  reasonable  charges,  the  defendant  was  entitled 
to  the  actual  allowances  and  the  actual  charges  agreed  upon  in 
the  receipt  for  storage.  Therefore,  judgment  was  reversed. 
Cow  Run  Co.  V.  Lehmer,  41  0.  S.  384. 

Warehouse  receipt — By  debtor  against  his  own  goods — Void  as 
to  other  creditors. 

A  firm,  engaged  in  the  business  of  slaughtering  hogs  and 
packing  ham,  borrowed  money  and  issued  to  the  lender,  as 
security  for  the  notes  given  in  payment  thereof,  two  rec(>ipts 
which  were  alleged  to  be  wiirehouse  i-eceijits.  for  a  large  (juan- 
tity  of  ham  then  in  the  firm's  ))ork-hous(\  The  goods  were 
marked  and  set  apart  in  the  j)ork-house  with  the  name  of  the 
lender  thereon.  Subsequently  the  firm,  without  th(>  knowl- 
edge of  the  lender,  the  plaintiff  herein,  sold  the  pork  repre- 
sented by  the  receipts  and  applied  the  proceeds  to  the  payment 
of  an  indebtedness  due  the  defendant  bank.  This  action  wa.«! 
brought  by  the  lender  against  the  bank  on  the  ground  thai  the 


652  OHIO   DECISIONS. 

warehouse  receipts  had  passed  the  title  to  the  pork  from  the 
firm  of  packers  to  him.  The  court  instructed  the  jury  that  if 
the  papers  called  warehouse  receipts  were  in  reality  given  by 
the  firm  to  the  lender  ' '  simply  by  way  of  security  for  a  loan  of 
money  made  by  him  to  them,  and  not  otherwise,  that  the  bank 
was  not  hable  for  it  was  a  creditor  of  the  firm  at  the  time  of  the 
issuance  of  these  receipts."  It  was  held  on  appeal  that  the 
verdict  given  for  the  defendant  and  the  above  charge  was  right. 
That  the  hams  in  question  were  not  pledged  to  the  lender  for 
the  reason  that  he  did  not  have  possession  thereof  and  that  the 
receipts  were  not  warehouse  receipts  such  as  would  pass  pos- 
session by  delivery;  that  there  was  nothing  in  the  statute  in 
force  at  the  time  of  this  transaction  relating  to  the  warehouse 
receipts  which  affected  the  question  to  be  decided.  It  was 
further  held  that  as  to  third  persons,  other  than  creditors  of 
the  firm  and  subsequent  purchasers  and  mortgagees  in  good 
faith,  that  the  plaintiff  had  acquired  an  interest  in  the  hams, 
but  that  the  instruments  not  being  warehouse  receipts  were  not 
binding  on  third  persons  who  were  creditors  of  the  firm  at  the 
time  of  the  transaction.  By  statutes  in  force  at  the  time  in 
order  to  secure  a  valid  mortgage  of  goods  and  chattels  there 
must  be  an  inmiediate  delivery  followed  by  an  actual  and  con- 
tinued possession  of  the  things  mortgaged,  and  further,  the 
mortgage  must  be  recorded  with  the  township  clerk,  otherwise 
the  same  would  not  be  valid  against  creditors  of  the  mortgagor 
and  subsequent  purchasers  and  mortgagees  in  good  faith.  The 
firm  here  had  never  been  engaged  in  the  business  of  warehouse- 
men and  there  was  no  record  made  of  the  instruments  in  ques- 
tion. Therefore  the  judgment  given  for  the  defendant  was 
affirmed.     Thome  v.  First  National  Bank,  37  0.  S.  254. 

Same — Estoppel  in  pais — Bo7ia  fide  holder. 

The  defendants,  to  whom  certain  warehouse  receipts  had  been 
issued  by  one  conducting  a  distillery  with  which  there  was  con- 
nected a  government  bonded  warehouse,  negotiated  a  sale  of 
the  whiskey  represented  by  the  receipts.  The  purchaser,  B.  & 
Co.,  declined  to  accept  the  original  receipts  with  the  note  for 
the  purchase  money  attached  thereto,  but  insisted  upon  having 
such  a  receipt  as  would  indicate  possession  and  apparent  title 


OHIO.  653 

to  the  goods  without  conditions  save  as  to  the  payment  of  tlic 
government  tax  and  storage.  Such  a  receipt  was  issued  and 
deUvered  to  B.  &  Co.  by  the  defendants.  B.  &  Co.  acecpt(''d 
certain  (h-afts  drawn  on  them  by  the  defendants  for  the  \mv- 
chase  money.  The  receipts  which  the  defendants  gave  to  B.  & 
Co.  were  in  form  warehouse  receipts  containing  the  name  of 
the  warehouseman  and  stating  in  the  body  thereof  that  the 
whiskey  was  held  for  the  account  of  "and  subject  to  the  order 
of  B.  &  Co.  Dehverable  only  on  return  of  this  receipt  to  us 
properly  indorsed,  and  on  payment  of  United  States  govern- 
ment tax  and  charges  on  same."  B.  &  Co.  failed  to  pay 
the  drafts  at  maturity,  they  became  insolvent  and  the 
plaintiff  purchased  the  warehouse  receipts  from  one  to  whom 
they  had  been  pledged  by  B.  &  Co.  This  purchase  was  made 
in  good  faith  and  without  notice  of  any  claim  of  the  defendants 
for  the  unpaid  purchase  price.  On  the  above  stated  facts  it 
was  held  that  the  defendants  were  estopped  to  set  up  their 
claim  for  purchase  price  by  their  act  in  issuing  the  receijjts 
which  the  plaintiff  had  purchased  in  good  faith.  The  plaintiff 
had  no  knowledge  that  the  whiskey  had  not  been  paid  for 
nor  that  the  real  warehouse  receipts  were  in  the  hands  of  the 
defendants.  Therefore,  judgment  which  had  been  given  below 
for  defendant  was  reversed.     Ensel  v.  Levy  &  Bro.,  46  0.  S.  255. 

Same — Not  a  negotiable  instrument. 

A  receipt  given  by  a  warehouseman  for  property  placed  in 
his  possession  for  storage  is  not,  in  a  technical  sense,  like  a 
bill  of  exchange,  a  negotiable  instrument,  but  it  merely  stands 
in  the  place  of  the  property  it  repi-esents,  and  a  delivery  of  the 
receipt  has  the  same  effect  in  transferring  the  title  to  the  pi-oj> 
erty  as  the  delivery  of  the  property.  Second  National  Bank  v. 
Walbridge,  19  0.  S.  419. 

Same— Issued  to  factor— Collateral  security— Bank  protected 
when  bona  fide  holder. 

The  owner  of  a  quantity  of  flour  sent  the  warehouse  receipt 
therefor  to  his  factor  for  the  pm-pose  of  sale.  The  factor, 
without  authority  from  the  owner,  pledged  the  receipt  to  secure 


654  OHIU    DECISIONS. 

a  personal  loan  made  to  him.  The  receipt  was  not  pledged  to 
secure  an  antecedent  debt  or  demand.  The  bank  in  good 
faith  loaned  the  money  and  accepted  the  warehouse  receipt  as 
security  therefor,  and  made  an  agreement  for  the  disposal  of 
the  flour.  It  was  held  that  under  the  terms  of  the  act  of 
March  12,  1844,  sees.  3  and  4,  in  force  at  the  commencement 
of  the  action  that  the  factor  was  to  be  regarded  as  the  true  owner 
of  the  flour  and  that  such  transfer  and  agreement  were  valid 
and  that  the  bank  was  entitled  to  hold  the  flour  as  security  for 
the  payment  of  the  loan.  Cleveland,  Brown  &  Co.  v.  Shoeman, 
40  0.  S.  176. 

Same — Same — Action  for  conversion  hy  assignee. 

The  defendant,  a  warehouseman,  issued  warehouse  receipts 
to  the  depositor  of  a  large  quantity  of  lard.  Such  receipts 
were  assigned  to  and  pledged  with  the  plaintiff  bank  as  security 
for  advances  made  by  it  to  the  owner  of  the  lard.  The  defendant 
afterward  delivered  the  lard  to  the  owner  and  did  not  require 
the  return  of  the  receipts.  The  receipts  were  in  form  negotiable. 
On  the  above  stated  facts  it  was  held  that  the  defendant  was 
liable  to  the  plaintiff  for  the  value  of  the  property  which  he 
had  allowed  to  be  removed  from  his  warehouse.  First  Na- 
tional Bank  of  Cincinnati  v.  Bates,  1  Fed.  Rep.  702. 

Same — Same — National  bank  may  hold  warehouse  receipt  as 
collateral. 

A  national  bank  m^de  a  loan  on  a  warehouse  receipt  as  col- 
lateral security.  Under  the  United  States  Revised  Statutes 
pertaining  to  national  banks,  it  was  held  that  such  a  bank  may 
lawfully  make  a  loan  and  take  as  collateral  security  therefor 
a  warehouse  receipt  representing  personal  property.  Cleveland, 
Brown  &  Co.  v.  Shoeman,  40  0.  S.  176. 

Same — Effect  of  statement  in  receipt  that  the  bailor  has  a  lien 
on  goods  for  full  cost  thereof — Goods  levied  on  while  stored. 

In  an  action  to  recover  damages  for  the  wrongful  levy  upon 
property  stored  with  a  warehouseman  the  plaintiff  in  order  to 
prove  his  title  to  the  property  offered  in  evidence  thirteen  ware- 
house receipts  which  among  other  things  stated  that  the  ware- 


oil  I...  055 

houseman  agreed  to  liold  tlic  ^oods  suhjcct  to  the  order  of  tlic 
plaintiff  he  liaving  a  lien  thereon  loi-  the  full  cost  of  the  same, 
it  was  held  that  the  general  property  in  the  goods  and  the  right 
of  possession  passed  to  the  i)lainlitf  untler  such  warehouse  re- 
ceipts and  that  he  was  therefore  entitled  to  comjjensation  for 
the  time  that  he  was  deprived  of  their  possession  by  tlie  sheriff. 
Gibson,  Stockwell  &  Co.  v.  The  Chiilicothc  Bank,  II  (J.  S.  .'Ul. 
See  Thome  v.  First  National  Bank,  37  O.  S.  254,  which  is  dis- 
tinguished from  the  above. 

Same — Duplicate — Issued  by  mistake — Good  defense. 

A  warehouseman  innocently  issued  duphcate  receipts  to  t he- 
owner  for  property  stored  with  him  and  the  plaintiff,  the  as- 
signee of  the  second  receipt,  obtained  possession  of  the  gocxls 
from  the  warehouseman.  Subse(iuently  the  assignee  of  the  first 
receipt  recovered  the  goods  from  the  plaintiff  in  an  action  of 
replevin.  It  was  held  in  the  action  brought  by  the  assignee  of 
the  second  receipt  against  the  warehouseman  tliat  the  latter 
would  be  permitted  to  show  as  against  the  jjlaintiff  the  mistake 
in  the  issuance  of  receipts  as  a  defense  to  the  action,  there 
being  no  privity  between  the  plaintiff  and  the  defendant. 
Second  National  Bank,  etc.,  v.  Walbridge,  19  0.  S.  419. 


656  OKLAHOMA   LAWS. 


CHAPTER  XXXVII. 
OKLAHOMA. 

LAWS   PERTAINING   TO    WAREHOUSEMEN. 

An  Act  providing  for  the  organization  of  public  warehouses, 
and  to  regulate  the  warehousing  and  inspection  of  grain  in 
pu])lic  warehouses  and  otherwise  in  the  territory,  and  provid- 
ing for  the  appointment  of  grain  inspectors. 

Be  it  enacted  by  the  Legislative  Assembly  of  the  Territory  0/  Okla- 
homa: 

Chief  inspector — Appointment : 

It  shall  be  the  dut}^  of  the  governor  of  the  territory  of  Okla- 
homa, on  or  before  June  first  after  the  passage  of  this  act,  to 
appoint  a  suitable  person  who  shall  not  be  interested,  directly 
or  indirectly,  in  any  public  warehouse  in  this  territory,  who 
shall  be  a  grain  expert,  and  who  shall  be  known  as  the  chief 
inspector  of  grain  for  the  territory  of  Oklahoma,  whose  term 
of  service  as  such  shall  continue  for  two  years  from  the  date  of 
his  appointment  under  this  act,  and  until  his  successor  is  ap- 
pointed and  quahfied.  Laws,  Oklahoma,  1899,  ch.  27,  p.  199, 
sec.  1. 

Supervision  : 

It  shall  be  the  duty  of  the  chief  inspector  to  have  general 
supervision  of  the  inspection  of  grain  as  required  by  this  act  or 
the  laws  of  the  territory.     Id.  sec.  2. 

Public  warehouses  : 

Public  warehouses  shall  embrace  all  warehouses,  elevators 
and  granaries  in  which  is  stored  grain  in  bulk,  and  in  which  the 
grain  of  different  owners  is  mixed  together,  or  in  which  grain  is 
stored  in  such  a  manner  that  the  identity  of  different  lots  can- 
not be  accurately   preserved:  Provided,   That   no   warehouse, 


UKLAllU.MA.  ij.'u 

elevator  or  granary  with  a  capacity  of  less  than  25,000  bashols 
measurement,  sliall  be  considered  a  pubUc  wareliouse.  Id. 
sec.  3. 

License  to  operate : 

The  proprietor,  lessee  or  manager  of  any  j)u])lic  warehouse 
shall  bo  re(iuired,  before  transacting  any  business  in  sucii  ware- 
house, to  procure,  from  the  thstrict  court  of  tlie  county  in  wliich 
such  warehouse  is  situated  a  license  permitting  such  proprietor, 
lessee  or  manager  to  transact  business  as  a  public  warehouse- 
man under  the  laws  of  this  territory,  which  license  shall  be  issued 
by  the  clerk  of  said  court  upon  written  application,  which  shall 
set  forth  the  location  and  name  of  such  warehouse  and  the 
individual  name  of  each  person  interested  as  owner  or  pi-inci- 
pal  in  the  management  of  the  same,  or,  if  the  warehouse  be 
owned  or  managed  by  a  corporation,  the  names  of  the  president, 
secretary,  and  treasurer  of  such  corporation  shall  be  stated, 
and  the  said  license  shall  give  authority  to  carry  on  and  con- 
duct the  business  of  a  public  warehouse  in  accordance  with 
the  laws  of  this  territory,  and  shall  be  revocable  by  the  said 
court  upon  a  summary  proceeding  before  the  court  upon  the 
complaint  of  any  person,  in  writing,  setting  forth  the  particular 
violation  of  law,  to  be  sustained  by  satisfactory  proof  to  be 
taken  in  such  manner  as  may  be  directed  by  the  court.  Id. 
sec.  4. 

Warehouseman — Bond : 

The  person  or  persons  receiving  a  license  as  herein  pro\ided 
shall  file  with  the  clerk  of  the  court  granting  the  same  a  iiond 
to  the  people  of  the  territory  of  Oklahoma,  with  good  and 
sufficient  surety  to  be  a])proved  by  said  court,  in  the  penal 
sums  as  per  the  following  schedule  of  capacities  by  measure- 
ment: For  a  public  warehouse  with  a  capacity  not  exceeding 
100,000  bushels,  $25,000;  for  a  public  warehouse  with  a  rapacity 
of  more  than  100,000  bushels  and  not  exceeding  200,000  bushels, 
$40,000;  for  a  public  warehouse  with  a  capacity  of  more  than 
200,000  bushels  and  not  exceeding  300,000  bushels.  .SnO.OOO; 
for  a  public  warehouse  with  n  rapacity  of  more  tlinn  .300.000 
and  not  exceeding  400,000  bushels,  $75,000,  con<liti<>n.'.I  for 
42 


658  OKLAHOMA    LAWS. 

the  faithful  performance  of  his  or  their  duties  as  public  ware- 
houseman or  warehousemen,  as  surety  for  any  penalties  foimd 
by  due  course  of  law  for  violation  of  any  clause  of  this  act,  and 
his  or  their  full  and  unreserved  compliance  with  the  laws  of  this 
territory  in  relation  thereto.     Id.  sec.  5. 

Coiiductiug  warehouse  without  license  : 

Any  person  or  persons  who  shall  transact  the  business  of 
pubhc  warehouseman  or  warehousemen,  without  first  procuring 
license  and  giving  a  bond  as  herein  provided,  or  who  shall  con- 
tinue to  transact  such  business  after  such  license  had  been 
revoked,  or  such  bond  may  have  become  void  or  found  insuffi- 
cient surety  for  the  penal  sum  in  which  it  is  executed  by  the 
court  approving  the  same  (save  only  that  he  may  be  permitted 
to  deliver  property  previously  stored  in  such  warehouse)  shall 
be  guilty  of  a  misdemeanor,  and  upon  conviction  be  fined  in 
a  sum  not  less  than  $100,  nor  more  than  .1500  for  each  and 
every  day  such  business  is  carried  on,  and  the  court  that  issued 
may  refuse  to  renew  any  license  or  grant  a  new  one  to  any 
person  or  persons  whose  license  has  been  revoked  within  one 
year  from  the  time  same  was  revoked.     Id.  sec.  6. 

Receiving  grain : 

It  shall  be  the  duty  of  the  person  or  persons  doing  a  public 
warehouse  business  under  this  act,  to  receive  for  storage  any 
grain  that  may  be  tendered  to  him  or  them  in  the  usual  manner 
with  which  warehouses  are  accustomed  to  recei\T  the  same  in 
the  ordinary  and  usual  course  of  business,  and  to  not  discrim- 
inate between  persons  desiring  to  avail  themselves  of  warehouse 
facilities,  and  that  the  schedule  of  charge  for  such  warehouse 
service  shall  be  uniform,  regardless  of  quantities  of  lots  so  of- 
fered or  received.     Id.  sec.  7. 

Inspection,  receipt : 

Receipts  of  grain  by  public  warehouses  in  all  cases  shall  be 
inspected  and  graded  by  a  duly  authorized  inspector  and  shall 
be  stored  wath  grain  of  a  similar  grade  received  as  near  the  same 
time  as  may  be;  but  if  the  owner  or  consignee  so  requests  and 
the  warehouseman  consents  thereto,  his  grain  of  the  same  grade 


OKLAHOMA.  «;."»'.• 

may  be  kept  in  a  bin  by  itself  apart  In.in  that  ot  the  ^mcial 
stock  of  the  \varehouse,  whieh  bin  shall  be  marked  "special," 
with  the  name  of  the  owner  and  the  (luantity  and  grade  of 
same,  and  the  warehouse  receipt  issued  for  same  shall  state 
upon  its  face  that  the  grain  is  stored  in  a  special  bin,  giving  the 
number  of  same  and  the  quantity  and  grade  of  the  grain  so 
stored.     Id.  sec.  8. 

Gr.aiii  not  delivered  unless  inspected  : 

No  grain  shall  be  delivered  from  a  public  warehouse  con- 
stituted by  this  act  unless  it  be  insjKX'ted  by  a  duly  authorized 
inspector,  and  found  to  be  of  grade  called  for  by  receipt  pre- 
sented for  such  delivery.     Id.  sec.  9. 

Different  grades  not  mixed  : 

Public  warehousemen  shall  not  mix  any  grain  of  dilTerent 
grades  together,  nor  select  or  mix  different  i|ualities  of  the  .same 
grade  for  the  purpose  of  storing  or  delivering  the  same,  nor  shall 
they  deliver  or  attempt  to  deliver  grain  of  one  grade  for  grain 
of  another  grade,  nor  in  any  way  tamper  with  grain  while  in  a 
public  warehouse  in  his  or  their  possession  or  cu-stody,  nor 
permit  the  same  to  be  done  by  others  with  the  \-iew  or  result  of 
profit  to  any  one;  and  in  no  case  shall  grain  of  different  grades, 
either  from  the  general  stock  or  from  si)ecial  bins,  be  mixed 
together  while  in  store  or  control  of  such  public  warehousemen. 
Id.  sec.  10. 

Preservation  of  grain : 

Whenever  it  may  be  necessary,  in  order  to  preserve  the  con- 
dition of  any  bin  or  lot  of  grain  stored  in  a  public  warehouse, 
to  run  the  contents  of  said  grain  (bin)  through  machinery  to 
air,  clear  or  otherwise  improve  or  preserve  such  condition,  and 
it  is  so  desired  by  the  owner  or  warehouseman,  this  may  be  done, 
but  in  such  manner  as  will  insure  the  contents  of  eacli  bin  or  lot 
intact,  and  of  the  same  grade  as  when  store(l:  but  this  .shall  not 
be  done  except  under  the  supervision  of  an  authorized  in- 
spector under  this  act.     Id.  sec.  11. 

Grain  refused  when  : 

Nothing  of  this  act  shall  be  construed  so  as  to  compel  the 


660  OKLAHOMA   LAWS. 

receipt  of  grain  into  any  warehouse  in  which  there  is  not  suffi- 
cient room  to  accommodate  or  store  it  properly,  or  in  cases 
where  such  warehouse  is  necessarily  closed.     Id.  sec.  12. 

Not  mixed  until  inspection  : 

In  all  places  where  there  are  legally  appointed  inspectors  of 
grain,  no  proprietor  or  manager  of  a  public  warehouse  shall  be 
permitted  to  receive  any  grain  and  mix  the  same  with  grain  of 
other  owners  in  the  storage  thereof,  or  stored  in  special  bins, 
until  the  same  shall  have  been  inspected  and  graded  by  such 
inspector.     Id.  sec.  13. 

Combination  with  carrier  prohibited  : 

No  warehouseman,  agent  or  manager  of  a  public  warehouse 
shall  enter  into  any  combination,  agreement  or  understanding 
with  any  railroad,  transfer  or  other  carrying  corporation,  or 
with  any  person  or  persons,  by  which  the  property  of  any  per- 
son is  to  be  delivered  to  any  public  warehouse  for  storage,  or 
other  purpose,  contrary  to  the  direction  of  the  owner,  his  agent 
or  assignee.     Id.  sec.  14. 

Warehouse  receipt — Contents  : 

Upon  application  of  the  owner  or  consignee  of  grain  stored 
in  a  public  warehouse,  the  same  being  accompanied  with  evi- 
dence that  all  charges  which  may  be  a  lien  upon  such  grain, 
including  charges  for  inspection,  have  been  paid,  the  ware- 
housemen shall  issue  to  the  person  entitled  thereto  a  warehouse 
receipt  therefor,  subject  to  the  order  of  the  owner  or  consignee, 
which  receipt  shall  bear  date  corresponding  with  the  receipt 
of  the  grain  into  store,  and  shall  state  upon  its  face  the  quan- 
tity and  inspected  grade  of  the  grain,  and  that  the  grain  men- 
tioned in  it  has  been  received  into  store  to  be  stored  with  grain 
of  the  same  grade  by  inspection  received  at  about  the  date  of 
the  receij^t,  and  that  it  is  deliverable  upon  the  return  of  the 
receipt  properly  indorsed  by  the  person  to  whose  order  it  was 
issued,  and  upon  the  payment  of  the  charges  accrued  for  stor- 
age. All  warehouse  receipts  for  grain  issued  from  the  same 
warehouse  shall  be  consecutively  numbered,  and  no  two  re- 
ceipts bearing  the  same  numb(M-  shall  be  issued  from  the  same 


OKLAHOMA.  661 

vvai-chousc  during  any  one  year,  cxcrpt  in  tiic  case  of  a  lost  or 
destroyed  receipt,  in  which  case  the  new  receipt  shall  Ix-ar  the 
same  date  and  nunihor  as  the  original,  and  shall  he  plainly 
marked  upon  its  face  "duplicate."  If  the  grain  for  which  the 
receipts  are  issued  was  received  from  railroad  cars,  the  nmnher 
of  each  car  shall  be  stated  in  the  receipt,  with  the  amount  each 
car  contained;  if  from  wagons  or  other  means,  it  shall  he  so 
stated;  if  having  been  bulked  from  sacks,  the  manner  of  its 
receipt  shall  be  stated  upon  the  face  of  such  receipt  for  giain 
stored.     Id.  sec.  15. 

New  receipt : 

No  warehouse  receipt  shall  be  issued  except  upon  the  actual 
delivery  of  grain  into  store  in  the  warehous(>  from  which  it 
purports  to  be  issued,  and  which  is  to  be  reprc>sented  by  the 
receipt;  nor  shall  any  receipt  be  issued  for  a  greater  (|uantity 
of  grain  than  was  contained  in  the  lot  stated  to  have  been  re- 
ceived ;  nor  shall  more  than  one  receipt  be  issued  for  the  same 
lot  of  grain  except  in  cases  where  receipts  for  a  i)art  of  a  lot  are 
desired,  and  then  the  aggregate  receipts  for  a  particular  lot 
shall  cover  that  lot  and  no  more.  In  cases  where  a  part  of  the 
grain  represented  by  the  receipt  is  delivered  out  of  store  and 
the  remainder  is  left,  a  new  receipt  may  be  issued  for  such  re- 
mainder; but  such  new  receipt  shall  bear  the  same  date  as  the 
original,  and  shall  state  on  its  face  that  it  is  the  balance  of  re- 
ceipt of  the  original  number,  and  the  receipt  uj)on  which  a  part 
has  been  delivered  shall  be  cancelled  in  the  same  mamier  as  if 
the  grain  it  called  for  had  all  been  tlelivered.  In  case  it  be 
desirable  to  divide  one  receipt  into  two  or  more,  or  in  case 
it  be  desirable  to  consolidate  two  or  more  receii)ts  into  one, 
and  the  warehouseman  consents  thereto,  the  original  receipt 
shall  be  cancelled  the  same  as  if  the  grain  had  been  delivered 
from  store;  and  the  ne-w  receipts  shall  state  on  their  face  that 
they  are  parts  of  other  receipts  or  a  consolidaticMi  of  other  re- 
ceipts as  the  case  may  be;  and  the  numbers  of  th(^  original  re- 
ceipts shall  also  appear  upon  the  new  ones  issued  explaining 
the  change;  but  no  consolidation  of  receipts  of  dates  differing 
more  than  ten  days  shall  be  permitted,  and  all  new  receijjts 
issued  for  old  ones  cancelled  as  herein  provided  shall  bear  the 


662  OKLAH(XMA    LAWS. 

same  dates  as  those  originally  issued  as  near  as  may  be.     Id. 
sec.  16. 

Liability  not  limited  : 

No  warehouseman  under  this  act  shall  insert,  in  any  receipt 
issued  for  grain  received,  any  language  in  any  wise  limiting  or 
modifying  his  responsibility  or  liability  as  imposed  by  the  laws 
of  this  territory.     Id.  sec.  17. 

Receipt  cancelled : 

Upon  delivery  of  grain  from  store  upon  any  receipt,  such  re- 
ceipt shall  be  plainly  marked  across  its  face  with  the  word 
"cancelled,"  with  the  name  of  the  person  cancelling  the  same, 
and  shall  thereafter  be  void  and  shall  not  again  be  put  in  cir- 
culation, nor  shall  grain  be  delivered  twice  upon  the  same 
receipt.     Id.  sec.  18. 

Receipt  transfer : 

Warehouse  receipts  for  property  stored  in  warehouses  created 
by  this  act,  as  herein  described,  shall  be  transferable  by  the 
indorsement  of  the  party  to  whose  order  such  receipt  may  be 
issued,  and  such  indorsement  shall  be  deemed  a  valid  transfer 
of  the  property  represented  b}^  such  receipt,  and  may  be  made 
either  in  blank  or  to  the  order  of  another.     Id.  sec.  19. 

Fraudulent  receipt — Penalty  for  issuing : 

Any  warehouseman  of  any  public  warehouse  created  by  this 
act,  employee  in  such  warehouse,  or  owner  or  manager  con- 
nected with  same,  who  shall  be  guilty  of  issuing  any  warehouse 
receipt  for  any  property  not  actually  in  store  at  the  time  of 
issuing  such  receipt,  or  who  shall  be  guilty  of  issuing  any  ware- 
house receipt  in  any  respect  fraudulent  in  its  character,  either 
as  to  its  date  or  the  quantity,  quality  or  inspected  grade  of 
such  property,  or  who  shall  remove  any  j^roperty  from  store 
(except  to  preserve  it  from  fire  or  other  sudden  danger),  with- 
out the  return  and  cancellation  of  any  and  all  outstanding  re- 
ceipts that  may  have  been  issued  to  represent  such  property, 
shall,  when  convicted  thereof,  be  guilty  of  a  felony,  and  shall 
suffer,  in  addition  to  other  penalties  prescribed  by  this  act, 


oKr.Aiio.MA.  668 

imprisonment  in  the  penitentiary  for  nut   less  than  two  nor 
more  than  ten  years.     Id.  sec.  20. 

Receipt  returned— Grain  delivered  : 

Upon  the  return  of  any  warehouse  receipt  issued  by  persoas 
in  charge  of  warehouses  created  by  this  act,  and  the  demand 
for  the  dehvery  of  property  represented  by  such  receipt,  duly 
indorsed  (if  not  presented  by  original  holder),  accompanied  by 
the  tender  of  all  proper  charges  upon  the  property  represented, 
such  property  shall  be  inunediately  deliverable  to  the  liolder 
of  such  receipt,  and  it  shall  not  be  subject  to  further  charges 
for  storage  after  demand  for  such  delivery  shall  have  been 
made,  and  deliveries  shall  be  made  by  the  warehouseman  in 
the  order  in  which  such  receipts  are  presented  and  demand  for 
deliveries  made.     Id.  sec.  21. 

Storage  rates — Publication  of  : 

The  manager  of  every  public  warehouse  created  by  this  act 
shall  be  required,  within  ninety  days  after  the  passage  of  this 
act,  and  during  the  first  week  in  January  of  each  year  there- 
after, to  publish,  in  one  or  more  of  the  newspapers  published  in 
the  vicinity  in  which  such  warehouse  is  situated,  a  schedule  of 
rates  for  the  storage  of  grain  in  his  warehouse  during  the  ensu- 
ing year,  which  rates  shall  not  be  increased  during  the  year, 
and  such  pubhshed  rates  or  any  published  reduction  of  them 
shall  apply  to  all  grain  received  into  such  warehouse  from  any 
person  or  source,  and  no  discrimination  shall  be  made  directly 
or  indirectly,  for  or  against  any  person,  in  any  charges  made 
by  such  warehouseman  for  the  storage  of  grain.  The  maximum 
charge  for  storage  and  handling  of  grain,  including  the  cost  of 
receiving  and  delivering,  shall  be  for  the  first  ten  days  or  part 
thereof,  two  cents  per  bushel,  and  for  each  ten  days  or  part 
thereof  after  the  first  ten  days,  one  half  of  one  cent  per  bushel. 
Id.  sec.  22. 

Warehouseman's  statements — Reports : 

The  manager  of  every  public  w:\rehou.se  created  under  this 
act,  shall,  on  or  before  Tuesday  morning  of  each  week,  cause 
to  be  made  out,  and  keep  posted  in  the  business  office  of  his 


664  OKLAHOMA   LAWS. 

warehouse  in  a  conspicuous  place,  a  statement  of  the  amount 
of  each  kind  and  grade  of  grain  in  store  in  his  warehouse,  at  the 
close  of  his  business  on  the  previous  Saturday.  He  shall  also 
be  required  to  furnish  weekly,  to  the  board  of  commissioners 
hereinafter  provided  for,  a  correct  statement  of  the  amount  of 
each  kind  of  grain  and  grade  of  same  received  in  store  in  such 
warehouse  during  the  previous  week,  also  the  amount  of  each 
kind  of  each  grade  of  grain  delivered  or  shipped  by  such  ware- 
house during  the  previous  week,  and  what  warehouse  receipts 
have  been  cancelled  upon  which  the  grain  has  been  delivered 
during  such  week,  giving  the  number  of  each  receipt  and  the 
amount,  kind  and  grade  of  grain  received  and  shipped  upon 
each;  how  much  through  grain  in  transit  to  points  outside  of 
the  territory,  if  any,  ma}^  have  been  received  for  transshipment 
for  which  warehouse  receipts  have  not  been  issued,  was  so 
shipped  or  delivered,  and  the  kind  and  grade  of  it,  when  and 
how  such  unreceipted  grain  was  received.  He  shall  also  make 
weekly  reports  to  the  said  commissioners  of  receipts  and  de- 
liveries of  such  unreceipted  grain,  if  any,  received  for  the  ac- 
count of  owners  of  such  warehouse,  either  directly  or  indirectly, 
with  the  amount,  kind  and  grade  of  same.  He  shall  also  re- 
port weekly  to  the  commissioners  what  receipts,  if  any,  have 
been  cancelled  and  new  ones  issued  in  their  stead  as  herein 
provided  for.  He  shall  also  make  such  further  statements  to 
the  commissioners  regarding  receipts  issued  or  cancelled  as 
may  be  necessary  for  the  keeping  of  a  full  and  correct  record 
of  all  receipts  issued  and  cancelled  and  of  grain  received  and 
dehvered.     Id.  sec.  23. 

Loss  or  damage  by  fire — Responsibility — Preservation  of 
grain : 

The  owners  of  public  warehouses,  under  this  act,  shall  not  be 
held  responsible  for  any  loss  or  damage  to  property  by  fire  while 
in  their  custody:  Provided,  Reasonable  care  and  vigilance  be 
exercised  to  protect  and  preserve  the  same;  nor  shall  they  be 
held  liable  for  damage  to  grain  by  heating,  if  it  can  be  shown 
that  proper  care  has  been  exercised  in  handling  and  storing  the 
same,  and  that  such  damage  was  the  result  of  causes  beyond 
their  control;  but  unless  public  notice  be  given  that  some  por- 


OKLAHOMA.  (JHf) 

tion  of  tho  grain  in  store  is  out  of  condition  or  hocominK  so, 
grain  of  eciual  ciuality  to  that  received  sliall  he  delivered  on  lill 
receipts  presented.  In  case,  however,  any  wai-eliouseinan  shall 
discover  that  any  portion  of  the  grain  in  his  warehouse  is  out 
of  condition  or  becoming  so,  and  it  is  not  in  his  power  to  |)reserve 
the  same,  he  shall  innnediately  give  i)ul)lic  notice  by  advertise- 
ment in  a  daily  newsi)aper,  if  one  is  published  in  the  city  or 
town  in  which  such  warehouse  is  situated,  and  by  posting  a 
notice  in  the  most  public  place  for  such  a  purpose  in  such  city 
or  town  of  its  actual  condition  as  near  as  can  be  ascertained. 
Such  notice  shall  state  the  kind  and  grade  of  the  grain,  and  give 
the  number  of  the  bins  in  which  it  is  stored,  and  shall  also  state 
in  such  notice  the  receipts  outstanding  upon  which  such  grain 
will  be  delivered,  giving  the  numbers  and  amounts  and  dates 
of  each,  which  receipts  shall  be  those  of  the  oldest  dates  then 
in  circulation  or  uncancelled,  the  grain  represented  by  which 
has  not  previously  been  declared  or  receipted  for  as  out  of  con- 
dition. The  enumeration  of  receipts  and  identification  of  grain 
so  discredited  shall  embrace  as  near  as  may  be  as  great  a  ({uan- 
tity  of  grain  as  is  contained  in  such  bins,  and  such  grain  shall  be 
delivered  upon  the  return  and  cancellation  of  the  receipts  so 
declared  to  represent  it,  upon  the  request  of  the  owner  thereof. 
Nothing  herein  contained  shall  be  held  to  relieve  the  .said  ware- 
houseman from  exercising  proper  care  and  vigilance  in  pre- 
serving such  grain  after  such  publication  of  its  condition;  but 
such  grain  shall  be  kept  separate  and  apart  from  all  diicct  con- 
tact with  other  grain,  and  shall  not  be  mixed  with  other  grain 
while  in  store  in  such  warehouse.  In  case  the  grain  declared 
out  of  condition,  as  herein  provided  for,  shall  not  be  removed 
from  store  by  the  owner  thereof  within  two  months  from  the 
date  of  the  notice  of  its  being  out  of  condition,  it  shall  be  law- 
ful for  the  warehouseman  where  the  grain  is  stored  to  .sell  the 
same  at  public  auction,  for  account  of  said  owner,  b}-  giving  ten 
days'  public  notice  by  advertisement  in  a  daily  newsjiaper.  if 
there  be  one  published  in  the  city  of  town  where  such  ware- 
house is  located.     Id.  sec.  24. 

Warehouseman— Negligence— Responsibility  : 

Any  warehouseman  proven  guilty  of  any  act  of  negligence, 


666  OKLAHOMA    LAWS. 

the  effect  of  which  is  to  depreciate  the  condition  of  property 
stored  in  the  warehouse  under  his  control,  shall  be  held  re- 
sponsible upon  the  bond  given  for  such  warehouse,  and  in  addi- 
tion thereto,  the  license  given  for  such  warehouse  shall  be  re- 
voked by  a  proceeding  as  hereinbefore  stated.     Id.  sec.  25 

Statement  imder  oath : 

It  shall  be  the  duty  of  every  owner,  lessee  and  manager  of 
every  public  warehouse  in  this  territory  to  furnish,  in  writing, 
under  oath,  at  such  time  as  the  commissioners  hereinafter  pro- 
vided for  shall  require  and  prescribe,  a  statement  concerning 
the  condition  and  management  of  his  business  as  such  ware- 
houseman.    Id.  sec.  26. 

Copy  of  this  act  posted  : 

All  proprietors  or  managers  of  public  warehouses  in  this  ter- 
ritory shall  keep  posted  up  at  all  times  in  a  conspicuous  place 
in  their  offices,  and  in  each  of  their  warehouses,  a  printed  copy 
of  this  act.     Id.  sec.  27. 

Warehouse  open  to  public — Scales  tested  : 

All  persons  owning  property,  or  who  may  be  interested  in 
the  same,  stored  in  any  public  warehouse  created  by  this  act, 
and  all  duly  authorized  inspectors  of  such  property,  shall  at  all 
times  during  ordinary  business  hours  be  at  full  liberty  to  ex- 
amine any  and  all  property  stored  in  any  public  warehouse  in 
this  territor}',  and  all  proper  facilities  shall  be  extended  to  such 
persons  by  the  warehouseman,  his  agents  and  servants  for  an 
examination,  and  all  parts  of  public  warehouses  shall  be  free 
for  the  inspection  and  examination  of  any  person  interested  in 
property  stored  therein,  or  by  any  authorized  inspector  of  such 
property.  All  scales  used  for  the  weighing  of  property  in  pub- 
lic warehouses  shall  be  subject  to  examination  and  test  by  any 
duly  authorized  inspector,  the  expense  of  such  tests  by  in- 
spector to  be  paid  by  the  warehouseman  where  scales  are  so 
tested,  and  no  scales  shall  be  used  for  the  weighing  of  grain  after 
being  found  incorrect,  until  put  in  order  and  found  accurate 
and  approved  for  further  use  by  an  authorized  inspector.  Id. 
sec.  28. 


OKLAHOMA.  GOT 

Violation — Misdemeanor : 

A  violation  of  any  of  the  preceding  provisions  of  this  act 
(except  in  cases  covered  by  sections  six,  twenty  and  twenty-five) 
by  any  warehouseman,  owner,  lessee,  manager  or  employee  of 
pubUc  warehouses  created  by  this  act,  is  declaretl  a  misdemeanor, 
and,  upon  conviction  thereof,  the  violators  shall  he  fined  not 
less  than  one  thousand  nor  more  than  five  thousand  dollars, 
one  fourth  of  such  fine  to  be  awarded  and  paid  to  the  informer 
of  such  misdemeanor.     Id.  sec.  29. 

County  attorney,  duties  of  : 

In  all  criminal  prosecutions  against  a  warehouseman  for  the 
violation  of  any  of  the  provisions  of  this  act,  it  shall  be  the  duty 
of  the  county  attorney  of  the  county  in  which  such  prosecution 
is  brought  to  prosecute  the  same  to  a  final  issue  in  the  name  of 
and  on  behalf  of  the  people  of  the  territory  of  Oklahoma.  Id. 
sec.  30. 

Bond  liable : 

If  any  warehouseman  shall  be  guilty  of  a  violation  of  an}' 
provision  of  this  act,  to  the  injury  of  any  person  by  such  \'iola- 
tion,  it  shall  be  lawful  for  such  injured  person  to  bring  suit  in 
any  court  of  competent  jurisdiction,  upon  the  bond  of  such 
warehouseman,  in  the  name  of  the  people  of  the  territory  of 
Oklahoma,  to  the  use  of  such  person.     /(/.  sec.  31. 

Deputy  chief  inspector — Assistants  : 

The  said  chief  inspector  shall  be  authorized  to  appoint  a  suit- 
able person  as  deputy  chief  inspector,  to  be  acting  chief  insj)ector 
in  the  absence  of  the  chief  inspector.  He  shall  also  l)e  author- 
ized to  appoint  assistant  inspectors,  who  shall  not  be  interested 
in  any  public  warehouse  in  this  territory:  Provided,  That  he 
shall  not  appoint  more  than  three  assistant  inspectors.  Id. 
sec.  32. 

Oath  and  bond— Chief  inspector  : 

The  chief  inspector  shall,  upon  entering  upon  the  duties  of 
his  office,  be  required  to  take  an  oath  that  he  will  faithfully  and 
strictly  discharge  the  duties  of  his  said  office  of  insjiector.  :ir- 
cording  to  law  and  the  rules  and  regulations  prescribing  iiis 


668  OKLAHOMA    LAWS. 

duties.  He  shall  execute  a  bond  to  the  people  of  the  territory 
of  Oklahoma  in  the  penal  sum  of  ten  thousand  dollars,  with 
sureties  to  be  approved  by  the  board  of  commissioners  herein- 
after provided  for,  conditional  that  he  will  pay  all  damages 
to  any  person  or  persons  who  may  be  injured  by  reason  of  his 
neglect,  refusal  or  failure  to  comply  with  the  law  and  the  rules 
and  regulations  of  this  act.     Id.  sec.  33. 

Oath  and  bond — Deputy  and  assistant's  liability  : 

The  deputy  chief  inspector  and  all  assistant  inspectors  ap- 
pointed under  this  act  shall  be  under  the  supervision  of  the 
chief  inspector,  to  whom  they  shall  report  in  detail  all  service 
performed  by  them  at  the  close  of  each  working  day.  The 
deputy  chief  inspector  and  each  assistant  inspector  shall  take 
the  same  oath  as  the  chief  inspector,  and  execute  a  bond  in  the 
penal  sum  of  twenty-five  hundred  dollars,  with  like  conditions, 
and  to  be  approved  in  like  manner  as  provided  for  the  bond  of 
the  chief  inspector,  which  bond  shall  be  filed  in  the  office  of  the 
secretary  of  the  territory.  Suit  may  be  brought  upon  bonds 
of  either  the  chief  inspector,  deputy  chief  inspector  or  assistant 
inspectors  in  any  court  having  jurisdiction  thereof,  in  the  county 
or  city  where  the  defendant  resides,  for  the  use  of  any  person 
injured  by  any  act  of  said  chief  inspector,  and  deputy  chief  in- 
spector, or  assistant  inspector.     Id.  sec.  34. 

Board  of  commissioners — Rules — Fees  : 

The  chief  inspector  of  grain,  the  deputy  chief  inspector,  as- 
sistant inspectors  and  other  employees  in  connection  therewith 
shall  be  governed  in  their  respective  duties  by  such  rules  and 
regulations  as  may  be  prescribed  by  a  board  of  commissioners, 
consisting  of  the  territorial  secretary,  territorial  auditor  and 
attorney  general  of  the  territory,  and  the  said  commissioner 
shall  have  full  power  to  make  all  proper  rules  and  regulations 
for  the  inspection  of  grain  not  inconsistent  with  this  act,  to  fix 
the  charges  for  the  inspection  of  grain  and  other  duties  of  said 
chief  inspector,  deputy  chief  inspector,  and  assistant  inspectors, 
and  to  make  and  prescribe  rules  for  the  collection  of  the  same, 
which  charges  shall  be  regulated  in  such  manner  as  will,  in  the 
judgment  of  the  said  board  of  commissioners,  produce  suffi- 


OKLAHOMA.  ^]^J(J 

cient  revenue  to  meet  the  necessary  expenses  of  the  service  of 
inspection,  and  no  more.     Id.  sec.  35. 

Compeusation  : 

It  shall  be  the  duty  of  said  board  of  commissioners  to  fix  the 
amount  of  compensation  to  b(>  paid  to  the  ciiicf  inspector, 
deputy  chief  inspector  and  assistant  insi)ectors,  and  all  other 
persons  employed  in  the  service  of  inspection,  and  prescribe 
the  time  and  niann(>r  of  i)ayment;  Provided,  That  tlie  salary  of 
the  chief  inspector  shall  not  exceed  one  thousand  dollars  per 
annum,  deputy  chief  inspector,  not  to  exceed  six  hun(h-cd  dol- 
lars per  annum,  and  the  assistant  inspectors  not  to  exceed  three 
hundred  dollars  per  annum  eacli;  and  the  board  of  commis- 
sioners not  to  exceed  one  hundred  dollars  i)er  annum  each:  And, 
provided  further,  That  the  territory  of  Oklahoma  shall  not  be 
liable  for  the  payment  of  any  of  the  above  salaries  in  any  man- 
ner whatsoever.     Id.  sec.  36. 

Neglect  or  fraudulent  couduct— Misdemeanor : 

Any  duly  authorized  chief  inspector,  deputy  chief  inspector, 
or  assistant  inspector  of  grain  under  this  act  who  shall  be  guilty 
of  neglect  of  duty,  or  who  shall  knowingly  or  carelessly  inspect 
or  grade  any  grain  improperly,  or  who  shall  accept  any  money 
or  other  valuable  consideration,  directly  or  indirectly,  for  any 
neglect  of  duty  as  such  chief  inspector,  deputy  chief  inspector, 
or  assistant  inspector,  or  any  person  who  shall  imi^roperly  in- 
fluence any  chief  inspector,  deputy  chief  inspector,  or  assistant 
inspector  of  grain  under  this  act  in  the  j^erformance  of  his  duties 
as  such  inspector  shall  be  deemed  guilty  of  a  misdemeanor  and 
on  conviction  shall  be  fined  in  a  sum  not  less  than  five  hun- 
dred dollars  nor  more  than  one  thousand  dollars  or  shall  i)e 
imprisoned  in  the  county  jail  not  less  than  six  nor  more  than 
twelve  months,  or  both  such  fine  and  imprisonment,  in  the  dis- 
cretion of  the  com-t.     Id.  sec.  37. 

Imposter— Misdemeanor  : 

Any  person  who  shall  assume  to  act  as  an  inspector  of  grain 
who  has  not  been  duly  appointed,  sworn  and  given  bond  under 
this  act,  shall  be  held  to  be  an  imjjoster,  shall  be  guilty  of  a 


070  OKLAHOALV    LAWS. 

misdemeanor  and  upon  conviction  thereof  shall  be  punished  by 
a  fine  of  not  less  than  one  hundred  dollars  nor  more  than  five 
hundred  dollars,  or  by  imprisonment  in  the  county  jail  not  less 
than  three  months  nor  more  than  six  months,  or  both  such 
fine  and  imprisonment,  at  the  discretion  of  the  court,  for  each 
and  every  offense  so  committed.     Id.  sec.  38. 

Inspector  removed  : 

Upon  complaint  in  writing  of  any  person  to  the  said  board 
of  commissioners,  supported  by  satisfactory  proof,  that  any 
person  appointed  or  employed  by  said  chief  inspector  under  the 
provisions  of  this  act  has  violated  any  of  the  rules  prescribed 
for  his  government,  or  has  been  guilty  of  any  improper  official 
act,  or  has  been  found  incompetent  for  the  duties  of  his  posi- 
tion, such  person  shall  be  removed  from  his  employment  by  the 
same  authority  that  appointed  him,  and  his  place  shall  be  filled, 
if  necessary,  by  a  new  appointment,  ^^'hen  it  shall  be  deemed 
necessary  to  reduce  the  number  of  persons  a])])ointed  or  em- 
ployed, their  terms  of  service  shall  cease  under  the  orders  of  the 
same  authority  by  which  they  were  appointed  or  employed. 
Id.  sec.  39. 

Appeal — Committee : 

In  all  matters  involving  doubt  on  the  part  of  the  chief  in- 
spector, the  deputy  chief  inspector  or  any  assistant  inspector, 
as  to  the  proper  inspection  into  or  out  of  any  warehouse  created 
by  this  act,  or  in  case  of  any  owner,  consignee  or  shipper  of 
grain,  or  any  warehouse  manager  shall  be  dissatisfied  with  the 
decision  of  the  chief  inspector,  deputy  chief  inspector,  or  any 
assistant  inspector  in  matters  pertaining  to  inspection,  an  ap- 
peal may  be  made  to  the  committee  hereinafter  provided  for, 
who  shall  at  once  convene,  and  whose  decision,  after  a  careful 
inquirj'  into  the  questions  at  issue,  shall  be  final.     Id.  sec.  40. 

Arbitration  committee  appointed  : 

The  board  of  (;ommissioners  shall,  as  soon  after  the  passage 
of  this  act  as  is  practicable,  appoint  committees  for  the  ad- 
justment of  differences  between  inspectors  and  warehousemen, 
or  owners  or  representatives  of  grain,  arising  from  the  acts  of 


OKLAHOMA.  t',71 

inspectors,  each  committee  to  consist  of  three  jjersons  well 
known  as  experts  in  grain;  and  a  committee  shall  be  aiJpoint<,'d 
in  each  city  or  town  where  public  warehouses  under  this  act 
are  locatetl,  said  committees  to  be  known  as  the  arbitration 
committees  of  the  board  of  commissioners.     Id.  sec.  41. 

Board  of  commissioners  to  make  rules : 

The  board  of  commissioners  shall  make  equitable  and  legal 
rules  governing  said  committee's  procedure,  in  ihc  arbitratif)ns, 
the  manner  and  amount  of  compensation,  the  method  of  ap- 
pointment and  terms  of  service.     Id.  sec.  42. 

Standard  of  grades — Clianges  in  notice  : 

The  board  of  comnussioners,  as  soon  after  the  passage  of  this 
act  as  is  practicable,  shall  estabhsh  a  proper  number  and  stand- 
ard of  grades  for  the  inspection  of  grain,  with  due  regard  to  the 
prevailing  usages  of  the  markets  of  this  territory,  the  interests 
of  both  producers  and  dealers,  and  as  near  as  may  be  conform 
with  standards  of  grade  adopted  by  reputed  leading  markets 
of  the  United  States:  Provided,  No  modification  or  changes  of 
grades  shall  be  made  or  any  new  ones  established  without  pulj- 
lic  notice  being  given  of  such  contemplated  changes,  for  at  least 
twenty  days  prior  thereto,  by  publication  in  three  daily  news- 
papers, one  of  which  shall  be  printed  in  German,  ]jrinte(l  in 
this  territory:  And,  provided  further.  That  no  mixture  of  old  or 
new  grades,  even  though  designated  by  the  same  name  or  de- 
stinction,  shall  be  permitted  while  in  store.     Id.  sec.  43. 

Report  of  commissioners : 

The  board  of  commissioners  shall,  on  or  before  the  first  day 
of  January  of  each  year,  make  a  report  to  the  governor  of  their 
doings  for  the  preceding  year,  to  contain  such  facts  as  will  dis- 
close the  actual  working  of  the  system  of  the  warehouse  busi- 
ness of  this  territory  as  contemplated  by  this  act,  and  such  sug- 
gestions thereto  as  to  them  may  appear  pertinent.     Id.  sec.  44. 

Inspection  of  warehouse  by  commissioners  : 

Said  commissioners  shall  examine  into  the  condition  and 
management,  and  all  other  matters  concerning  the  business  of 
warehouses  under  this  act  in  this  territory,  so  far  as  the  same 


672  OKLAHOMA    LAWS. 

may  pertain  to  the  relations  of  such  warehouses  to  the  public, 
and  to  the  security  and  convenience  of  persons  doing  business 
therewith,  and  to  ascertain  whether  the  officers,  directors,  man- 
agers, lessees,  agents  and  employees  comply  with  the  laws  of 
this  territory  now  in  force  or  to  be  in  force  concerning  such 
warehouses.  Whenever  it  shall  come  to  their  knowledge,  or 
they  shall  have  reason  to  believe,  that  any  law  governing  the 
public  warehouses  of  this  territory  under  this  act  is  being  or 
has  been  violated,  they  shall  cause  to  be  prosecutetl  or  prose- 
cute all  persons  guilty  of  such  violation.  To  enable  such  com- 
missioners efficiently  to  perform  their  duties  under  this  act,  it 
is  hereby  made  their  duty  to  cause  one  or  more  of  their  num- 
ber, at  least  once  in  six  months,  to  visit  each  warehouse  in  this 
territory  and  to  personally  inquire  into  the  management  of  such 
warehouse  business.     Id.  sec.  45. 

Books  and  records  inspected  by  commissioners  : 

The  property,  books,  records,  accounts,  papers  and  proceed- 
ings of  all  such  warehousemen  as  are  contemplated  by  this  act, 
shall  at  all  times  during  business  hours  be  subject  to  the  exam- 
ination and  inspection  of  the  commissioners,  or  any  one  of  them, 
and  they  or  any  one  of  them  shall  have  power  to  examine  under 
oath  any  owner,  manager,  lessee,  agent  or  employee  of  a  public 
warehouse,  and  any  other  person,  concerning  the  condition  and 
management  of  such  warehouse.     Id.  sec.  46. 

Witnesses : 

In  making  any  examination  as  contemplated  by  this  act  or 
for  the  purpose  of  obtaining  information  as  contemplated  by 
this  act,  said  commissioners  shall  have  the  power  to  issue  sub- 
poenas for  the  attendance  of  witnesses,  and  may  administer 
oaths.  In  case  any  person  shall  willfully  refuse  to  obey  such 
subpoena,  it  shall  l)e  the  duty  of  the  district  court  of  any  county 
upon  application  of  said  commissioners,  to  issue  an  attach- 
ment for  such  witness,  and  compel  such  witness  to  attend  before 
the  commissioners  and  give  his  testimony  upon  such  matters 
as  shall  be  lawfully  required  by  such  commissioners;  and  the 
said  court  shall  have  power  to  punish  for  contempt  as  in  other 
cases  of  refusal  to  obey  the  process  and  order  of  such  court.  Id. 
sec.  47, 


OKLAIKJMA.  fiT;; 

Refusal  to  obey  siibpoeiui — Misdemeanor  : 

Any  person  who  shall  willfully  ncfrlect  or  refuse  to  obey  the 
process  of  subpcrna  issued  by  said  coniniissioiiers,  and  appear 
and  testify  as  therein  required,  shall  i)e  f!;uilty  of  a  iiiisdeMieaiior, 
and  shall  be  liable  to  arraigniueut  and  trial  in  any  court  of  com- 
petent jurisdiction,  and  on  conviction  thereof  shall  be  j)unished 
for  each  offense  by  a  fine  of  not  less  than  twenty-live  dollars  nor 
more  than  five  hundred  dollars,  or  by  imprisonment  of  not  more 
than  thirty  days,  or  both  such  fine  and  imprisonment,  in  tin* 
discretion  of  the  court  before  which  such  conviction  shall  be 
had.     Id.  sec.  48. 

Coniinissioiiers  to  direct  county  attoi*ney  ; 

It  shall  be  the  duty  of  the  county  attorney  in  every  county, 
on  the  request  of  said  commissioners,  to  institute  and  prosecuto 
any  and  all  suits  or  proceedings  which  they  or  either  of  thorn 
shall  be  directed  b}^  said  commissioners  to  institute  and  prose- 
cute for  a  violation  of  this  act,  or  any  law  of  this  territory  con- 
cerning public  warehouses  as  constitutecl  by  tliis  act.  or  \\\o 
officers,  employees,  owners,  operators  or  agents  of  such  ware- 
houses.    Id.  sec.  49. 

Prosecutions  how  brouj?ht : 

All  prosecutions  under  this  act  shall  be  in  the  name  of  the 
territory  of  Oklahoma,  and  all  moneys  arising  therefrom  shall 
be  paid  into  the  territorial  treasury  by  the  sheriff  or  other  officers 
collecting  the  same.     Id.  sec.  50. 

Dama£?es  not  affected  : 

This  act  shall  not  be  construed  so  as  to  waive  or  affect  the 
right  of  any  person  injured  by  the  violation  of  any  law  in  re- 
gard to  warehouses  from  prosecuting  for  his  private  damages 
in  any  manner  allowed  by  law.     Id.  sec.  51. 

Grain  in  transit : 

Any  person  or  persons,  partnership  or  corporation  may  have 
grain,  in  carload  lots  in  transit  or  otherwise,  inspected  by  said 
inspectors  under  this  act,  the  same  as  though  in  warehouses  and 
subject  to  the  same  rules  and  regulations  as  herein  prescribed. 
Id.  sec.  52. 
43 


674  OKLAHOMA   LAWS. 

This  act  shall  take  effect  and  be  in  force  from  and  after  its 
passage  and  approval. 

Approved  March  10,  1899.     Id.  sec.  53. 

Every  person  who  while  lawfully  in  possession  of  an  article 
of  personal  property,  renders  any  service  to  the  owner  thereon 
by  labor  or  skill,  employed  for  the  protection,  improvement, 
safe-keeping  or  carriage  thereof,  has  a  special  lien  thereon,  de- 
pendent on  possession,  for  the  compensation,  if  any,  which  is 
due  to  him  from  the  owner  for  such  services.     Sec.  3210,  St.  1893. 

Note.     See  also  article  3,  chap.  11,  Statutes  of  Oklahoma,  1893. 


OKLAHOMA,  H7.') 


DECISIONS  AFFECTING  WAREHOUSEMEN. 

B. 

Ordinary  care — Warehousemen  not  insurers. 

Warehousemen  are  not  insurers  of  property  intrusted  with 
them  l)ut  are  hable  only  for  negligence  or  the  want  of  ordinary 
care.  There  must  be  some  dereliction  of  duty  on  the  j)art  of  a 
warehouseman  in  relation  to  the  goods  in  order  to  make  him 
liable  to  the  owner  for  the  loss.  Walker  v.  Eikleberry,  7  Okla. 
599. 


(376  OREGON    LAWS. 


CHAPTER  XXXVII. 
OREGON. 

LAWS  PERTAINING   TO   WAREHOUSEMEN. 

Warehousemen,  etc.,  must  give  receipts  : 

It  shall  be  the  duty  of  every  person  keeping,  controlling, 
managing,  or  operating,  as  owner  or  agent  or  superintendent 
of  any  company  or  corporation,  any  warehouse,  commission 
house,  forwarding  house,  mill,  wharf,  or  other  place  where  grain, 
flour,  pork,  beef,  wool,  or  other  produce  or  commodity  is  stored, 
to  deliver  to  the  owner  of  such  grain,  flour,  pork,  beef,  wool, 
produce,  or  commodity,  a  warehouse  receipt  therefor,  which 
receipt  shall  bear  the  date  of  its  issuance,  and  shall  state  from 
whom  received,  the  number  of  sacks,  if  sacked,  the  number  of 
bushels  or  pounds,  the  condition  or  quality  of  the  same,  and 
the  terms  and  conditions  upon  which  it  is  stored.  Hill's  Anno- 
tated Laws  of  Oregon,  1892,  sec.  4201. 

Above  section  construed — Negotiability  : 

The  aim  of  the  above  statute  was  to  facilitate  the  transfer 
of  stored  goods  and  its  purpose  was  to  protect  the  holders  of 
warehouse  receipts  from  imposition  and  fraud.  Under  this 
section  the  indorsement  may  be  in  blank,  or,  to  the  order  of 
another;  warehouse  receipts  may  thus  pass  from  hand  to  hand. 
The  implications  arising  from  the  words  "to  whose  order"  do 
not  limit  the  statute  to  such  receipts  as  are  only  negotiable  in 
form,  when  its  clear  purpose  was  to  make  any  receipt  issued 
by  a  warehouseman  or  wharfinger  for  the  storage  of  grain  or 
other  commodity  negotiable  without  regard  to  form.  State  v. 
Koshland,  25  Ore.  178. 

Fraudulent  receipt  prohibited ; 

No  person  shall  issue  any  receipt  or  other  voucher  as  provided 
for  in  section  4201  for  any  grain,  flour,  wool,  pork,  beef,  or  other 


OREGON.  ,;77 

produce  or  coinmodity  not  ;ictii;illy  in  store  at  tlic  time  <,r  issu- 
ing such  receipt,  or  issue  any  ivceipt  in  any  resp(?ct  fraudulent 
in  its  character,  either  as  to  its  ilate  or  the  (juantity,  (juahty, 
or  grade  of  such  property,  or  (hipHcate  or  issue  a  second  reeeij)t 
for  the  same  while  any  former  receipt  is  outstanding  f(.r  the 
same  property  or  any  part  thereof,  without  writing  across  the 
face  thereof  the  word  "duplicate."  Hill's  Annotated  Laws  of 
Oregon,  1892,  sec.  4202. 

Musi  not  mix  commodities  of  different  grades : 

No  person  operating  any  warehouse,  conunission  house,  for- 
warding house,  mill,  wharf,  or  other  place  where  grain.  Hour, 
pork,  beef,  wool,  or  other  produce  or  conunodity  is  stored  shall 
mix  any  grain,  flour,  pork,  beef,  wool,  or  other  jjroduce  or  com- 
modity of  different  grades  together  (or  different  (|uality  of  the 
same  grade),  or  deliver  one  grade  for  another,  or  in  any  way 
tamper  with  the  same  while  in  his  possession  or  custody,  with 
a  view  of  securing  any  profit  to  himself  oi-  aii>-  other  pei-son 
and  in  no  case  mix  different  grades  together  while  in  store. 
Id.  sec.  4203. 

Nothing  to  be  shipped  or  removed  without  owner's  con- 
sent : 

No  person  operating  any  warehouse,  conunission  house,  for- 
warding house,  mill,  wharf,  or  other  place  of  storage  shall  sell, 
incumber,  ship,  transfer,  or  in  any  manner  remove  or  permit 
to  be  shipped,  transferred,  or  removed  beyond  his  custody  and 
control,  any  flour,  grain,  beef,  pork,  wool,  or  other  produce  or 
conuno(Uty  for  whicli  a  recei])t  has  been  given  by  liiiii  as  afore- 
said, whether  received  for  storing,  shipping,  grinding,  or  niaini- 
facturing,  or  other  purposes,  without  the  written  assent  of  the 
holder  of  the  receipt.     Id.  sec.  4204. 

Warehouse  receipts  and  checks  declared  negolialde: 

All  checks  or  receipts  given  by  any  person  operating  any  ware- 
house, commission  house,  forwarding  house,  mill,  wharf,  or  other 
place  of  storage  for  any  grain,  flour,  pork,  beef,  wool,  or  otlu-r 
produce  or  commodity  stored  or  (l(>i)osited.  and  all  bills  of  lad- 
ing and  transportation  receipts  of  every  kind,  are  hereby  de- 


(578  OilEGON    LAWS. 

clared  negotiable,  and  may  be  transferred  by  indorsement  of 
the  party  to  whose  order  such  check  or  receipt  was  given  or 
issued,  and  such  indorsement  shall  be  deemed  a  valid  transfer 
of  the  commodity  represented  by  such  receipt,  and  may  be  made 
either  in  blank  or  to  the  order  of  another.     Id.  sec.  4205. 

Must  deliver  goods  to  owner  when  charges  paid  : 

On  the  presentation  of  the  receipt  given  by  any  person  operat- 
ing any  warehouse,  mill,  wharf,  commission  house,  forwarding 
house,  or  any  other  place  of  storage  for  any  grain,  flour,  beef, 
wool,  pork,  or  other  produce  or  commodity,  and  on  payment 
of  all  the  charges  due  thereon,  the  owner  shall  be  entitled  to 
the  immediate  possession  of  the  commodity  named  in  such  re- 
ceipt, and  it  shall  be  the  duty  of  such  warehouseman,  wharfinger, 
millman,  or  other  builder  (bailee)  to  deliver  such  commodity  to 
the  owner  of  such  receipt.     Id.  sec.  4206. 

Penalty  for  violation  of  provisions  of  this  chapter : 

Any  person  who  shall  violate  any  of  the  provisions  of  this  act 
shall  be  liable  to  an  indictment,  and  upon  conviction  shall  be 
fined  in  any  sum  not  exceeding  five  thousand  dollars,  or  im- 
prisonment in  the  penitentiary  of  this  state  not  exceeding  five 
years,  or  both;  and  in  case  of  a  corporation,  the  person  acting 
for  said  corporation  shall  be  liable  for  a  like  punishment  upon 
indictment  and  conviction.  And  all  and  every  person  or  per- 
sons aggrieved  by  a  violation  of  this  act  may  have  and  main- 
tain an  action  at  law  against  the  person  or  persons,  corporation 
or  corporations,  violating  any  of  the  provisions  of  this  act,  to 
recover  all  damages,  immediate  or  consequential,  which  he  or 
they  may  have  sustained  by  reason  of  such  violation,  before 
any  court  of  competent  jurisdiction,  whether  such  person  shall 
have  been  convicted  under  this  act  or  not.     Id.  sec.  4207. 

Liens  of  carriers,  storers  of  merchandise,  and  agisters  of 
cattle  : 

Any  person  who  is  a  common  carrier,  or  who  shall,  at  the 
request  of  the  owner  or  lawful  possessor  of  any  personal  prop- 
erty, carry,  convey,  or  transport  the  same  from  one  place  to 
another,  and  any  person  who  shall  safely  keep  or  store  any 


OREGON.  679 

grain,  wares,  merchandise,  and  jK'rsonal  property  at  thr  re- 
quest of  the  owner  or  lawful  possessor  thereof,  and  any  person 
who  shall  pasture  or  feed  any  horses,  cattle,  ho^s,  sheep,  or 
other  live  stock,  or  bestow  any  labor,  care,  or  attention  upon 
the  same  at  the  request  of  the  owner  oi-  lawful  possessor  thereof, 
shall  have  a  lien  upon  such  projK'rty  for  his  just  and  reasonable' 
charges  for  the  labor,  care,  and  attention  he  has  bestowed,  and 
the  food  he  has  furnished,  and  he  may  retain  possession  of  such 
property  until  such  charges  be  paid.     Id.  sec.  8684. 

Proceeding  to  enforce  such  liens,  proviso— Further  pro- 
viso : 

If  such  just  and  reasonable  charges  be  not  paid  within  three 
months  after  the  care,  attention,  and  labor  shall  have  been  j)er- 
formed  or  bestowed,  or  the  materials  for  food  shall  have  been 
furnished,  the  person  having  such  lien  may  proceed  to  sell  at 
pu])lic  auction  the  property  mentioned  in  the  last  two  sectioas, 
or  a  part  thereof  sufficient  to  pay  such   just  and    reasonable 
charges.     Before  selling,  he  shall  give  notice  of  such  sale  !)>• 
advertisement  for  three  weeks,   in  a  newspaper  published  in 
the  county,  or  by  posting  up  notice  of  such  sale  in  three  of  the 
most  public  places  in  the  city  or  j^recinct  for  thi-ee  weeks  before 
the  time  of  such  sale,  and  the  proceeds  of  such  sale  shall  be 
applied,  first,  to  the  discharge  of  such  lien,  and  the  cost  of  keef)- 
ing  and  selling  such  property,  and  the  remainder,  if  any,  shall 
be  paid  over  to  the  owner  thereof;  provided,  that  nothing  herein 
contained  shall  be  construed  as  to  authorize  any  warehouseman 
to  sell  more  of  any  wool,  wheat,  oats,  or  other  grain  than  suffi- 
cient to  pay  charges  due  said  warehouseman  on  such  wool. 
wheat,  oats,  or  other  grain;  and  provided  further,  that  if  any 
such  warehouseman  shall  sell,  loan,  or  dispose  of  in  any  manner, 
without  the  consent  of  the  o\vner  thereof,  of  any  such  wool, 
wheat,  oats,  or  other  grain,  he  shall,  for  each  and  ever}'  offense, 
forfeit  and   pay  to  the  owner  of  such  wool,  wheat,  oats,  or  other 
grain  a  sum  equal  to  the  market  value  thereof,  and  fifty  |)er 
cent  of  said  market  value  in  addition  as  a  penalty,  the  market 
value  to  be  the  price  such  article  or  articles  l>ear  at  the  time 
the  owner  thereof  determines  to  sell  the  same,  such  value  and 
penalty  to  be  recovered  by  an  action  at  law.     Id.  sec.  .S6S5. 


680  OREGON   LAWS. 

These  provisions  not  to  interfere  with  a^i^reements  : 

The  provisions  of  the  last  tliree  sections  shall  not  interfere 
with  any  special  agreement  of  the  parties.     Id.  sec.  3686. 

Arson  by  burning?  other  building  or  boat  in  night-time  : 

If  any  person  shall  willfully  and  maliciously  burn  in  the  night- 
time any  church,  court  house,  town  house,  meeting  house,  asy- 
lum, college,  academy,  school  house,  prison,  jail  or  other  pubhc 
building  erected  or  used  foi-  public  uses,  or  any  steamboat,  ship, 
or  other  vessel,  or  any  banking  house,  ware  house,  express  office, 
store  house,  manufactory,  mill,  barn,  stable,  shop,  or  office  of 
another,  or  shall  willfully  and  maliciously  set  fire  to  any  build- 
ing or  boat  owned  by  himself  or  another,  by  the  burning  whereof 
any  edifice,  building,  boat,  or  vessel  mentioned  in  this  section 
shall  be  burned  in  the  night-time,  such  person  shall  be  deemed 
guilty  of  arson,  and  upon  conviction  thereof  shall  be  punished 
by  imprisonment  in  the  penitentiary  not  less  than  five  nor  more 
than  fifteen  years.     Id.  sec.  1751. 

Larceny  by  bailee ; 

If  any  bailee,  with  or  without  hire,  shall  embezzle,  or  wrong- 
fully convert  to  his  own  use,  or  shall  secrete,  with  intent  to  con- 
vert to  his  owm  use,  or  shall  fail,  neglect,  or  refuse  to  deliver, 
keep,  or  account  for,  according  to  the  nature  of  the  trust,  any 
money  or  property  of  another  delivered  or  intrusted  to  his  care 
or  control,  and  which  may  be  the  subject  of  larceny,  such  bailee, 
upon  conviction  thereof,  shall  be  deemed  guilty  of  larceny, 
and  punished  accordingly;  and  if  any  such  bailee  shall  receive 
grain  of  any  kind  from  different  bailors,  and  mix  the  same  and 
store  it  together  in  bulk,  in  such  case,  in  an  indictment  charg- 
ing such  bailee  so  mixing  and  storing  grain  with  committing, 
with  reference  to  said  grain,  the  crime  defined  and  made  penal 
in  this  section,  it  shall  not  be  necessary  to  charge  in  said  indict- 
ment or  prove  on  the  trial  that  the  ownership  of  said  grain  is 
more  than  one  of  said  bailors.  And  every  mortgagor  of  personal 
property   having   possession   of  property   mortgaged   shall  be 

Note.     See  section  1752  et  sec/.,  for  penalties  for  other  crimes,  which 
may  concern  warehouses. 


OREGON.  G81 

deemed   a  bailee  within  the   provisions  of   this  section.     Id. 
sec.  1771. 

Making  false  receipt  or  altering  receipt  of  goods  in  ware- 
house : 

If  any  person  shall  willfully  or  knowingly  make  or  ahcr  any 
receipt  or  other  written  evidence  of  the  dchvery  into  any  ware- 
house, commission  house,  forwarding  house,  mill,  store  or  other 
building  occupied  by  him  or  his  employer,  of  any  grain,  flour, 
pork,  beef,  wool,  or  other  goods,  wares,  or  merchandise,  which 
shall  not  have  been  so  received  or  delivered  previous  to  the 
making  and  uttering  of  such  receipt  or  otlier  written  evi<lenee 
thereof,  such  person,  upon  conviction  thereof,  shall  l)e  pun- 
ished by  imprisonment  in  the  penitentiary  not  less  than  one 
year  nor  more  than  five  years,  or  by  imprisonment  in  the  county 
jail  not  less  than  three  months  nor  more  than  one  year.  Id. 
sec.  1775. 


682  OREGON   DECISIONS. 


DECISIONS  AFFECTING  WAREHOUSEMEN. 

A. 

Bailment — Commingliny  of  grain. 

Where  grain  belonging  to  different  depositors  is  mingled  with 
grain  of  like  kind  by  a  warehouseman,  the  transaction  between 
such  depositors  and  warehouseman  remains  a  bailment.  McBee 
V.  Ceasar  et  al.,  15  Ore.  62. 

Same — Alleged  title  in  another. 

A  bailee  who  alleges  the  title  to  be  in  another  does  so  at  his 
peril,  and,  by  retaining  the  goods,  makes  himself  a  party  to  the 
controversy  and  must  stand  or  fall  by  the  title  of  his  alleged 
bailor.     Wyatt  v.  Henderson,  31  Ore.  48. 

Conversion — Mingling  of  grain  does  not  constitute. 

The  mingling  of  grain  by  a  warehouseman  with  that  belong- 
ing to  other  depositors  does  not  constitute  a  conversion  thereof. 
Sears  v.  Ahrams,  10  Ore.  499. 

Same — Consent  of  depositor  to  shipment  by  warehouseman. 

If  a  warehouseman  parts  with  property  intrusted  to  his  care 
without  the  consent,  express  or  implied,  of  his  depositor,  such 
act  amounts  to  a  conversion.     McBee  v.  Ceasar  et  al.,  15  Ore.  62. 

Same — Custom  of  warehousemen  of  shipping  grain  at  a  certain 
season  in  the  year,  no  defense  unless  authorized  by  depositor. 

A  warehouseman  who  had  received  a  large  quantity  of  grain 
belonging  to  different  persons,  which  grain  he  had  mingled 
together,  delivered  it  to  the  defendant  for  the  purpose  of  liquidat- 
ing an  account  between  them;  it  was  held  that  when  the  w\are- 
houseman  parted  wdth  the  grain  he  was  guilty  of  conversion, 
further  that  the  plaintiff  was  not  estopped  to  deny  that  the 
shipment  by  the  warehouseman  to  the  defendant  was  unlawful 
even  if  the  fact  was  shown  that  the  plaintiff  knew  it  was  the 
custom  of  the  w^arehouseman  to  ship  all  the  grain  which  he  had 
in  store  at  a  certain  season  of  the  year.     Id. 


OREGON.  688 

Same — Delivery  pursuant  to  order  of  one  not  the  oinu-r. 

Where  one  who  was  not  the  (nviicr  ol'  cciiaiii  ^nxtds,  which 
were  stored  in  a  warehouse,  contracted  tu  sell  them  to  the 
defendant,  and  the  warehouseman  delivered  the  same  pursuant 
to  order  of  the  seller,  it  was  held,  in  an  action  of  trover  hrouKhl 
by  the  owner,  that  this  act  constituted  a  conversion  and  that 
no  demand  was  necessary  before  suit  brought.  Further,  that 
the  doctrine  of  caveat  emptor  applied,  and  that  it  was  the  duty 
of  such  purchaser  to  ascertain  the  rights  of  his  vendor.  Vehian 
V.  Lewis,  15  Ore.  539. 

Same — Warehouseman  estopped  to  change  position  after  suit 
brought. 

In  a  suit  against  a  warehouseman  for  the  recovery  of  certain 
goods  deposited  with  him  or  the  value  thereof,  the  defendant 
in  his  plea  set  forth  that  the  plaintiff  was  not  the  owner  of  the 
goods.  During  the  trial  of  the  case  the  defendant  offered  proof 
to  show  that  the  reason  of  his  refusal  to  deliver  the  goods  was 
that  there  had  been  no  payment  or  tender  of  storage  charges. 
It  was  held  that  he  was  estopped  to  so  change  his  position. 
Wyatt  V.  Henderson,  31  Ore.  48,  following  Anderson  v.  Portland 
Flouring  Mills  Co.,  37  Ore.  483. 

I. 

Commingling  of  grain — Loss  to  be  borne  in  proportion  to  the 
amounts  deposited. 

Where  a  deficiency  in  the  common  mass  of  grain  occurs  with- 
out any  fault  of  the  depositors,  the  loss  must  fall  ujjon  all  in  the 
proportion  which  the  amount  of  grain  each  had  depo.sited  bore 
to  the  whole  amount  deposited.  The  depositors  of  grain  which 
is  thus  mingled  become  tenants  in  common  thereof  and  tlie 
several  owners  are  compelled  to  sustam  any  lo.ss  jyro  rata  which 
might  occur  by  diminution,  decay  or  otherwise.  In  order  to 
make  a  depositor  share  in  any  such  loss  it  is  necessary  that 
his  grain  be  stored  there  at  the  time  the  loss  occurs.  If  the 
warehouseman  should  deliver  to  any  depositor  a  greater  (juan- 
tity  than  he  would  be  entitled  to  from  such  residue,  although 
less  than  the  proper  quantity  to  which  he  would  have  been 
entitled  if  there  had  been  no  loss  or  (Uminution,  it  wouKl  be  a 


684  OREGON   DECISIONS. 

wrongful  taking  as  well  as  a  wrongful  possession  as  against  the 
other  depositors.     Brown  v.  Northcutt,  14  Ore.  529. 

N. 

Loss  hy  fire — Caused  by  negligence — Care  of  sulphuric  acid. 

The  defendant,  a  common  carrier,  was  liable  for  plaintiff's 
goods  as  warehouseman,  the  transit  having  terminated  and  it 
having  stored  the  goods  in  its  depot.  The  evidence  showed 
that  an  employee  of  the  defendant  placed  a  carboy  of  sulphuric 
acid  within  the  depot  and  that  the  place  in  which  the  acid  was 
stored  was  near  to  that  part  of  the  depot  which  had  been  used 
by  employees  of  the  defendant  when  filling  lamps,  there  being 
oil  on  the  floor  in  consequence;  further  that  the  station  agent 
did  not  know  that  the  acid  had  been  placed  there  and  that  it 
was  the  custom  to  place  acids  of  an  explosive  or  dangerous 
nature  outside  of  the  depot.  The  acid  was  unloaded  and  as 
a  result  of  a  leak,  the  acid  coming  in  contact  with  oil,  an  ex- 
plosion and  fire  followed.  On  the  above  stated  facts  it  was 
held  that  the  defendant  was  guilty  of  negligence  in  the  care  and 
custody  of  plaintiff's  goods  and  was  liable  therefor  to  him  for 
their  value.  Farmers'  Loan  &  Trust  Co.  v.  Oregon  Ry.  &  Nav. 
Co.,  73  Fed.  Rep.  1003. 

Warehouse  receipts — Not  negotiable  unless  declared  so  by  statute. 

In  the  absence  of  a  statute  declaring  warehouse  receipts  to  be 
negotiable  they  are  not  negotiable  instruments  in  the  com- 
mercial sense,  so  as  to  bind  the  maker  to  the  assignee  in  all 
cases.  The  holder  of  such  a  receipt  takes  no  better  title,  nor 
occupies  any  more  advantageous  position  than  if  the  goods 
themselves  were  held  by  him.     Solomon  v.  Bushnell,  11  Ore.  277. 

Same — Requisites  of  negotiability  prior  to  warehouse  axA. 

Prior  to  the  passage  of  the  warehouse  act  the  transfer  of  a 
warehouse  receipt  which  in  terms  stated  that  the  property 
represented  thereby  would  be  delivered  to  the  depositor  upon 
the  return  of  the  receipt  would  not  pass  title  to  the  property 
represented  thereby.  Gill  v.  Frank  &  Koshland,  12  Ore.  507, 
distinguishing,  Solomon  v.  Bushnell,  11  Ore.  277. 


OREGON.  ^85 

Same— Negotiability— Not  a  negotiable  instrument   irithu,  tlic 
meaning  of  .the  mercantile  law. 

Section  4205  of  Hill's  Ann.  Laws  declares  warehouse  receipts 
to  be  negotiable  antl  by  the  statute  such  receipts,  regardless  of 
their  form,  are  made  negotiable  in  the  sense  that  a  traiLsfer 
thereof  by  indorsement  carries  the  absolute  title  to  the  com- 
modity represented  by  the  receipt,  and  a  bona  fide  purchaser 
for  value  is  not  chargeable  with  knowledge  of  any  notice  of  any 
equities  between  the  original  parties,  as  in  case  of  the  assign- 
ment of  an  ordinary  chose  in  action;  but  the  statute  does  not 
give  to  such  receipts  all  the  attributes  of  negotiable  pa|)er.  A 
transfer  of  the  receipt  by  indorsement  may  operate,  uniler  the 
statute,  to  transfer  and  vest  the  title  of  the  goods  in  the  pur- 
chaser, where  before  it  would  not,  but  the  nature  of  the  con- 
tract itself  is  unchanged.  It  is  in  no  sease  a  negotiable  instru- 
ment under  the  merchant  law.  It  is  simply  a  written  acknowl- 
edgment by  the  warehouseman  that  he  has  received,  and  holds 
in  store  for  the  depositor,  the  amount  and  description  of  prop- 
erty named  in  the  receipt,  upon  the  terms  and  contUtions  therein 
stated,  and  is  nothing  more  than  a  written  contract  between  the 
parties,  which  by  the  statute  is  made  negotiable  for  certain 
purposes.  The  word  "negotiable"  is  e\idently  not  used  in  the 
statute  in  the  sense  in  which  it  is  ordinarily  api)lie(l  to  bills  of 
exchange  and  promissory  notes.  Anderson  v.  Portland  Flour- 
ing Mills  Co.,  37  Ore.  4S3;  Stale  v.  Koshland,  25  Ore.  ITS;  Shaw 
V.  R.  R.  Co.,  101  U.  S.  557. 

Same — Parol  evidence  admissible  to  show  thai  person  issuing 
such  receipt  acted  in  the  capacity  of  agent. 

Warehouse  receipts  are  not  negotiable  instmments  within  the 
meaning  of  the  rule  prohibiting  the  admission  of  parol  testimony 
to  charge  one  not  bound  upon  the  face  of  the  in.strument.  but 
in  that  respect  the}^  are  simple  contracts  and  such  evidence  is 
admissible  to  show  that,  although  executed  by  and  in  the  name 
of  an  agent,  they  are  in  effect  the  contract  of  the  principal,  and 
that  he  is  bound  thereby.  Anderson  v.  Portland  Flouring  Mills 
Co.,  37  Ore.  483;  Barbre  v.  Goodale,  28  Ore.  464. 


686  OREGON   DECISIONS. 

B. 

Bill  of  lading — Not  a  contract. 

As  between  the  parties  thereto  a  bill  of  lading  is  not  a  con- 
tract in  writing  such  as  will  protect  the  same  against  the  intro- 
duction of  parol  testimony  to  contradict  or  vary  its  terms  but 
it  is  to  be  regarded  only  as  an  admission  on  the  part  of  the  con- 
signor as  to  his  purpose  at  the  time  of  making  the  shipment, 
and  such  admission  is  subject  to  be  rebutted.  McBee  v.  Ceasar 
et  al,  15  Ore.  62. 

T. 

Indictment  of  a  warehouseman — Requisites. 

An  indictment  charged  the  defendant,  a  warehouseman,  under 
sees.  4201  and  4207  of  Hill's  Ann.  Code  with  wrongfully  issuing 
a  receipt  for  a  greater  number  of  sheep-skins  than  was  actually 
received.  The  indictment  charged  the  defendant  with  operat- 
ing as  owner,  a  warehouse,  and  with  being  a  warehouseman, 
and  further  alleged  that  he  issued  receipts  for  sheep-skins  not 
actually  in  store  at  the  time;  it  was  not  set  forth,  however, 
that  the  defendant  operated  a  warehouse  for  the  storage  of 
sheep-skins  and  other  commodities.  It  was  held  on  demurrer 
that  this  indictment  was  defective.  State  v.  Koshland,  25  Ore. 
178;  State  v.  Stockman,  30  Ore.  36. 

U. 

Constitutionality  of  statide  imposing  penalty  upon  warehouse- 
men— Failure  to  specifically  mention  penalty  in  the  title  of  act — 
Indictment. 

A  warehouseman  was  indicted  for  violation  of  the  warehouse 
act  of  this  state  for  issuing  receipts  for  a  greater  amount  of 
property  than  he  had  actually  in  the  store.  The  statute  under 
which  he  was  indicted  is  entitled  "Act  to  regulate  warehouse- 
men, wharfingers,  commission  men,  and  other  bailees,  and  to 
declare  the  effect  of  warehouse  receipts."  The  contention  was 
made  in  behalf  of  the  defendant  that  the  part  of  such  act  which 
attempted  to  impose  a  penalty  upon  warehousemen  was  void 
under  sec.  20,  art.  4,  of  the  state  constitution  which  provides 
in  effect  that  all  matters  contained  in  the  statute  shall  be  em- 


MKKCON.  HHT 


braced  in  the  title  thereof.  It  was  held  that  this  coiitciitit.n 
could  not  be  sustained;  that  this  i)n)visi()n  of  tho  constitution 
should  receive  a  liberal  interpretation  in  order  to  |)roniote,  ami 
not  defeat,  the  beneficial  purposes  for  which  it  was  adopteti. 
State  V.  Koshland,  25  Ore.  178. 


688  PENNSYLVANIA   LAWS, 


CHAPTER  XXXVIII. 
PENNSYLVANIA. 

LAWS   PERTAINING  TO   WAREHOUSEMEN. 

Warehouse  receipts  and  bills  of  ladiiii?  to  be  negotiable — 
Transferee  to  be  deemed  the  owner  of  the  goods — Lien  of 
holder — When  property  to  be  delivered  : 

Warehouse  receipts  given  for  any  goods,  wares,  merchandise, 
grain,  flour,  produce,  petroleum,  or  other  commodities,  stored 
or  deposited  witli  any  warehouseman,  wharfinger,  or  other  per- 
son in  this  state,  or  bills  of  lading,  or  receipts  for  the  same, 
when  in  transit  by  cars  or  vessels  to  any  such  warehouseman, 
wharfinger  or  other  person,  shall  be  negotiable,  and  may  be 
transferred  by  indorsement  and  delivery  of  said  receipt  or  bill 
of  lading;  and  any  person  to  whom  the  said  receipt  or  bill  of 
lading  may  be  so  transferred,  shall  be  deemed  and  taken  to  be 
the  owner  of  the  goods,  wares  and  merchandise  therein  specified, 
so  as  to  give  security  and  valichty  to  any  lien  created  on  the 
same,  subject  to  the  payment  of  freight  and  charges  thereon; 
and  no  property  on  which  such  lien  may  have  been  created, 
shall  be  delivered  by  said  warehouseman,  wharfinger  or  other 
person,  except  on  the  surrender  and  the  cancellation  of  said 
original  receipt  or  bill  of  lading;  or,  in  case  of  partial  sale  or 
release  of  the  said  merchandise,  by  the  written  assent  of  the 
holder  of  said  receipt  or  bill  of  lading,  indorsed  thereon:  Pro- 
vided, That  all  warehouse  receipts  or  bills  of  lading,  which  shall 
have  the  words  "not  negotiable,"  plainly  written  or  stamped 
on  the  face  thereof,  shall  be  exempt  from  the  provisions  of  this 
act.     1866,  Sept.  24;  P.  L.  (1867)  1363,  sec.  1. 

No  receipt  to  be  given  except  for  goods  actually  received  : 

No  warehouseman,  wharfinger  of  other  person,  shall  issue  any 
receipt  or  voucher,  for  any  goods,  wares,  merchandise,  petroleum, 
grain,  flour,  or  other  produce  or  commodity,  to  any  person  or 


PENNSY1.VAMA.  08l» 

persons,  purporting  to  be  the  owner  or  owners  thereof,  unless 
such  goods,  wares,  merchanchse,  petroleum,  grain,  Hour  or  (.tlwr 
produce  or  commodity,  shall  have  been  actually  received  into 
store,  or  upon  the  premises  of  such  warehouseman,  wharhnger 
or  other  person,  and  shall  be  in  store,  or  on  the  j)reinises  as 
aforesaid,  and  under  his  control,  at  the  time  of  issuing  such 
receipt.     Id.  sec.  2. 

Duplicate  receipts  to  be  so  indorsed  : 

No  warehouseman,  wharfinger  or  other  person,  shall  issue  any 
second  or  duplicate  receipt  for  any  goods,  wares,  merchandise, 
petroleum,  grain,  flour  or  other  produce  or  conunodity,  while 
any  former  receipt  for  any  such  goods,  wares,  merchnndise, 
petroleum,  grain,  fiour  or  other  produce  or  commodity  as  afore- 
said, or  any  part  thereof,  shall  be  outstanding  and  uncalled, 
without  writing  across  the  face  of  the  same,  "dupUcate."  Id. 
sec.  3. 

Warehouseman,  etc.,  not  to  sell,  etc.,  without  retnrn  of 
receipt : 

No  warehouseman,  wharfinger  or  other  person,  shall  sell,  or 
incumber,  ship,  transfer,  or  in  any  manner  remove,  beyond  his 
immediate  control,  any  goods,  wares,  merchandise,  petroleum, 
grain,  fiour  or  other  produce  or  commodity,  for  wiiich  a  receipt 
shall  have  been  given  by  him  as  aforesaid,  whether  received  for 
storage,  shipping,  grinding,  manufacturing  or  other  purposes, 
without  the  return  of  such  receipt.     Id.  sec.  4. 

Above  act  construed  -  Who  a  warehouseman  within  its 
meaning — Rule  of  strict  construction  : 

The  object  of  the  above  act  is  to  protect  the  transferees  and 
pledgees  of  what  is  technically  known  as  warehou.se  receipts. 
The  person  who  issues  such  a  rcceijil  must  be  a  warehou-seman, 
or  one  who  is  engaged  in  a  like  business,  and  th(^  expression 
"other  business"  means  those  engaged  in  a  simil;ir  business, 
or  who  may  connect  the  business  of  warehousemen  or  wharfin- 
gers with  some  other  pursuit  such  as  shipping,  grinding,  or  other 
manufacturing.  The  statute  being  penal  is  to  be  strictly  con- 
strued, and  should  not  be  extended  beyond  the  evident  intent 
of  the  legislature  as  expressed  upon  its  face.  The  receipt 
44 


(390  PENNSYLVANIA   LAWS. 

issued  by  a  warehouseman  pursuant  to  this  act  need  not  be  in 
any  particular  form  to  be  negotiable;  for  if  it  is  issued  by  one 
who  is  embraced  within  the  class  of  persons  mentioned  in  the 
statute,  it  will,  regardless  of  form  be  negotiable  unless  there  be 
a  notice  on  its  face  that  it  is  not  negotiable.  Bucher  v.  Com- 
monwealth, 103  Pa.  St.  528;  Moors  v.  Jagode,  195  Pa.  St.  163; 
People's  Bank  v.  Gaijleij,  9  W.  N.  Cas.  49. 

Sauie— Holding  oneself  out  as  a  warehouseman — Effect : 

Where  a  distiller  had  issued  receipts  upon  which  it  was  stated 
that  they  were  warehouse  receipts,  the  court  charged  the  jury 
that  where  a  man  or  firm  hold  themselves  out  as  warehousemen, 
assert  that  they  are  warehousemen,  holding  goods  on  storage 
for  a  charge  and  issuing  receipts  upon  which  it  is  stated  that 
they  are  w^arehousemen,  that  the  public  has  a  right  to  deal  with 
them  as  such  and  the  effect  of  the  issuance  of  such  receipts 
constitutes  an  agreement  that  they  are  to  be  governed  by  the 
statutes  of  Pennsylvania  in  relation  thereto.  Judgment  was 
given  for  the  plaintiff  which  was  affirmed  on  appeal.  Rosen- 
haum  V.  Batjer,  154  Pa.  St.  544. 

Penalty  for  violation  of  preceding  provisions  : 

Any  warehouseman,  wharfinger  or  other  person,  who  shall 
violate  any  of  the  foregoing  provisions  of  this  act,  shall  be  deemed 
guilty  of  fraud;  and  upon  indictment  and  conviction  shall  be 
fined  in  any  sum  not  exceeding  one  thousand  dollars,  or  impris- 
oned in  one  of  the  state  prisons  of  this  state,  not  exceeding  five 
years,  or  both;  and  all  and  every  person  or  persons  aggrieved 
by  the  violation  of  any  of  the  provisions  of  this  act  may  have 
and  maintain  an  action  at  law  against  the  person  or  persons 
violating  any  of  the  foregoing  provisions  of  this  act,  to  recover 
all  damages  which  he  or  they  may  have  sustained  by  reason  of 
any  such  violation  as  aforesaid,  before  any  court  of  competent 
jurisdiction,  whether  such  person  shall  have  been  convicted  of 
fraud  as  aforesaid,  under  this  act,  or  not.  1866,  Sept.  24;  P.  L. 
(1867)  1363,  sec.  5. 

This  act  to  extend  to  grain  stored  in  elevators  and  to 
petroleum  in  barrels  : 

The  provisions  of  the  foregoing  act  shall  apply  to  grain  stored 


PENNSYLNANIA.  OHl 

in  grain  elevators,  and  to  petroleum  in  hmivls,  ston-d  i,v  kept 
in  places  designated  by  law;  and  the  owners  or  lessees  of  any 
of  said  elevators  or  places  designated  as  aforesaid,  shall  iiave 
the  rights  and  powers,  and  be  subject  to  the  (jbligalions  and 
penalties  as  therein  provided,  in  icgard  to  warehousemen, 
wharfingers  or  other  persons.     Id.  sec.  7. 

AttacliMients  of  goods  in  Uie  hands  of  liailees  remilaled  — 
Holder  of  receipt  to  be  deemed  j,Mrnishee— Dissolution  of 
attacluueiit : 

Whenever  any  goods,  wares  or  mercliandise,  shall  have  been, 
or  shall  hereafter  be  attached,  by  writ  of  foreign  or  other  attach- 
ment, in  the  hands,  possession  or  custody  of  any  warehouse- 
man, w'harfinger  of  other  person,  who  shall  have  i.ssued  for  the 
same,  any  warehouse  receipt  or  voucher,  or  any  bill  of  lading 
or  other  receipt,  when  in  transit  by  car  or  vessel,  which  ware- 
house receipt,  voucher,  bill  of  lading  or  other  receipt,  shall  have 
been  negotiated  and  transferred  by  indorsement  or  deliA-ery,  as 
provided  in  the  act  to  which  this  is  a  supplement,  tlie  holder 
of  any  such  warehouse  receipt,  voucher,  bill  of  lading  or  other 
receipt,  to  whom  the  same  shall  have  been  transferred  f»r  de- 
livered as  aforesaid,  although  not  named  or  summoned  in,  or 
served  with  such  writ  of  attachment,  shall  nevertheless  be 
deemed  and  taken  to  all  intents  to  be  a  garnishee  of  the  said 
goods,  wares  or  merchandise  attached  in  the  said  writ,  as  if  the 
same  w^ere  in  his  hands  or  possession;  and  the  name  of  the 
holder  of  such  warehouse  receipt,  voucher,  bill  of  lading  or  other 
receipt  shall  upon  application  to  the  court  wli(>refrom  such  writ 
was  issued,  be  added  to  the  record  of  the  action  as  a  garnishee 
of  the  said  goods,  wares  or  merchandise;  and  thereupon  the 
said  court  shall,  upon  the  motion  of  the  said  garnishee,  grant  a 
rule  upon  the  plaintiff  in  such  aitachment,  to  ajipear  before 
the  court  at  the  time  and  place  in  such  rule  nanuvl.  and  there 
show  cause  why  the  attachment  of  such  goods,  wares  or  mer- 
chandise should  not  be  dissolved,  or  the  proceeds  thereof,  if 
the  same  shall  have  been  sold  by  the  order  of  .said  court,  paid 
to  the  holder  of  such  warehou.se  recei|)t,  voucher,  bill  of  lading 
or  other  receipt,  upon  his  giving  security  as  such  .<r;irnisln'e,  by 
recognizance   and  sufficient  sureties  to   be   approved   by   the 


692  PENNSYLVANLV    LAWS. 

court,  or  by  one  of  the  judges  thereof  in  vacation,  with  condi- 
tion that  so  much  of  the  said  goods,  wares  or  merchandise,  or 
of  the  proceeds  thereof,  after  the  sale  of  the  whole  or  any  part 
thereof,  shall  remain  after  the  settlement  or  payment  thereout, 
of  the  amount  of  any  lien  upon  the  said  goods,  wares  or  mer- 
chandise created  by  the  advance  of  money  or  credit  by  the  said 
holder  of  such  warehouse  receipt,  voucher,  bill  of  lading  or  other 
receipt,  transferred  or  delivered  as  aforesaid,  and  also  of  all 
prior  liens  for  storage,  freight  and  other  charges,  shall  be  re- 
tained in  the  hands  of  said  garnishee,  to  answer,  if  the  plaintiff 
shall  have  execution  of  any  judgment  of  the  effects  of  the  de- 
fendant in  the  action  attached  as  aforesaid  or  to  abide  the 
further  action  of  the  said  court.     1874,  June  13,  P.  L.  285,  sec.  1. 

Bailees  not  to  be  liable,  when  the  property  is  taken  from 
them  by  legal  process  : 

Where  goods,  wares  or  merchandise  shall  be  taken  from  the 
possession  of  any  warehouseman,  wharfinger,  carrier  or  other 
bailee,  by  writ  of  attachment,  replevin  or  other  legal  process, 
such  warehouseman,  wharfinger,  carrier  or  other  bailee  shall  not 
be  hable  therefor  to  the  owner  of  such  goods,  wares  or  merchan- 
dise, or  to  the  holder  of  any  receipt,  voucher  or  bill  of  lading 
given  for  the  same;  saving  and  reserving,  however,  to  such 
owner  or  holder,  all  legal  remedies  for  the  recovery  of  the  said 
goods,  wares  or  merchandise  from  any  person  unlawfully  de- 
taining the  same,  or  for  the  recovery  of  damages  against  any 
person  unlawfully  taking  the  same.     Id.  sec.  2. 

Actions  for  property  delivered  by  mistake : 

Any  carrier  or  other  bailee  of  property,  who  has  parted  with 
its  possession  by  mistake,  to  any  person  not  entitled  to  the 
possession,  may,  after  demand,  maintain  an  action  of  replevin 
for  the  same,  or  if  the  property  cannot  be  found,  an  action  of 
assumpsit,  or  trover  and  conversion,  against  the  party  con- 
verting or  removing  it.  In  the  case  of  replevin,  if  there  was 
no  fraud  in  obtaining  such  possession,  the  plaintiff  shall  first 
tender  to  the  defendant  the  freight  or  other  proper  charges 
which  have  accrued,  at  the  time  of  the  demand  of  possession. 
1881,  June  8,  P.  L.  86,  sec.  1. 


PENNSVL\AMA.  tj9;^ 

Where  receipt  has  been  lost  or  destroyed,  owiiri  rn:i)  piv- 
sent  petition  to  eourl  of  eoninion  pleas,  praying  tor  an  ord«'r 
on  the  company  to  deliver  np  the  goods— Citation  : 

Where  any  receipt  given  or  issued  by  any   wareliouscinan, 
warehousing  company,  storage  or  deposit  company,  or  wharfin- 
ger, has  become  lost,  mislaid  or  destroyed,  it  shall  be  lawful  for 
the  person  claiming  to  be  the  owner  of  such  receipt  to  present 
to  the  court  of  conmion  pleas  of  the  county  wherein  said  ware- 
houseman, warehousing  company,  storage  or  deposit  company, 
or  wharfinger,  issuing  such  receipt  shall  have  his,  their  or  its 
principal  office,  or  place  of  business,  a  petition  verified  by  the 
oath  or  affirmation  of  the  petitioner,  setting  forth  all  the  mate- 
rial facts,  including  the  date  of  the  receipt  as  accurately  as  tlie 
same  can  be  ascertained,  a  description  of  the  goods,  wares,  mer- 
chandise, petroleum,  grain,  flour  or  other  produce,  commodity 
or  property  for  which  the  receipt  was  given,  and  a  statement 
of  the  value  thereof,  the  name  of  the  person  or  part>'  to  whom 
the  receipt  was  given,  the  manner  in  which  the  petitioner  ob- 
tained title  to  such  receipt,  the  date  at  which  he  ac(|uir('d  title 
and  whether  such  title  be  absolute  or  in  trust,  or  otherwise 
qualified,  the  date  of  the  loss,  mislaying  or  destruction  as  far 
as  the  same  can  be  furnished,  and  a  statement  that  the  jjcti- 
tioner  is  unable  by  reason  thereof  to  return  such  receipt,  or  to 
produce  the  same,  and  praying  for  an  order  on  such  warehouse- 
man, warehousing  company,  storage  or  deposit  company,  or 
wharfinger  who  issued  the  same,  to  deliver  up  to  the  petitioner 
the  goods,  wares,  merchandise,  petroleum,  grain,  flour  or  other 
produce,  commodity  or  property  for  which  such  receipt  was 
issued  and  given,  without  the  petitioner  being  retjuired  to  pro- 
duce or  return  such  receipt;  whereupon  the  court  shall  cause  a 
citation  to  issue  directed  to  the  warehouseman,  warehousing 
company,  storage  or  deposit  company,  or  wharfinger  issuing 
such  receipt,  and  to  such  other  pei'son  or  persons,  if  any.  as  to 
the  court  may  seem  to  have  an  interest  in  the  matter,  recjuir- 
ing  them  to  appear  on  a  day  certain  to  be  fixed  I)y  th(^  court, 
and  show  cause  w^hy  the  prayer  of  said  petitioner  should  not 
be  granted  and  why  the  order  and  decree  prayed  for  should  not 
be  entered.     1893,  May  25,  P.  L.  133,  sec.  1. 


694  PENNSYLVANIA    LAWS. 

Court  may  grant  prayer — The  petitioner  to  execute  a  bond 
and  file  same — Company  to  deliver  up  the  goods  after  bond 
is  tiled  and  decree  entered — Decree  not  to  impair  any  lien  of 
company  against  such  goods  : 

On  the  return  of  such  citation  the  court  may,  in  its  discre- 
tion, after  due  consideration,  grant  the  prayer  of  such  petition 
and  may  order  and  direct  the  warehouseman,  warehousing 
company,  storage  or  deposit  company,  or  wharfinger,  who  issued 
such  receipt,  to  dehver  up  to  the  petitioner  the  goods,  wares, 
merchandise,  petroleum,  grain,  flour  or  other  ])roduce,  com- 
modity or  property  for  which  such  receipt  was  given  without 
requiring  the  i5roduction  or  return  of  such  receipt:  Provided, 
however,  That  the  petitioner  shall  first  execute  and  file  in  the 
office  of  the  prothonotary  or  clerk  of  said  court  a  bond  with  one 
or  more  sureties  to  be  approved  by  the  court,  which  bond  shall 
be  taken  in  the  name  of  the  commonwealth  of  Pennsylvania 
for  the  use  and  benefit  of  all  parties  in  interest,  and  shall  be 
taken  in  such  sum  as  shall  be  fixed  by  the  court,  after  due  con- 
sideration, as  to  the  value  of  the  goods  and  property  so  ordered 
to  be  delivered  as  well  as  to  the  other  circumstances  of  the  case. 
And  upon  the  filing  of  such  bond  and  on  the  entering  of  such 
order  and  decree  by  the  court  said  warehouseman,  warehousing 
company,  storage  or  deposit  company,  or  wharfinger,  who  issued 
such  receipt,  shall  deliver  up  to  the  petitioner  the  goods,  wares, 
merchandise,  petroleum,  grain,  flour  or  other  commodity  or 
produce  or  property  for  which  such  receipt  was  given,  without 
requiring  the  production  or  return  of  such  receipt,  and  shall  be 
fully  released  and  discharged  of  and  from  all  liability  and  re- 
sponsibility whatsoever  to  any  and  all  person  or  parties  what- 
soeA^er  by  reason  of  so  doing,  and  should  any  person  or  party 
be  injured  by  such  order  or  decree,  his  or  their  recourse  shall 
be  solely  upon  such  bond  or  against  the  wrongdoer  whose  action 
procured  such  order  or  decree.  And  further  'provided,  That  no 
such  decree  or  order  shall  in  anywise  impair  or  affect  any  right, 
lien  or  claim  that  such  warehouseman,  warehousing  company, 
storage  or  deposit  company,  or  wharfinger,  may  or  shall  have 
upon  or  against  such  goods,  wares,  merchandise,  petroleum, 
grain,  flour  or  other  produce,  commodity  or  property  for  ad- 


FEN  NSVI.X  ASIA.  096 

varices,  loans,  payments,  storage,  work  or  service  whatsoever. 
Id.  sec.  2. 

Conditions  of  bond— Any  person  injured  may  insfitiite  ac- 
tion : 

The  bond  herein  provided  for  sliall  he  conditioned  that  the 
petitioner  shall  indeuinify  all  parties  interested  against  any 
and  all  loss,  or  damage,  which  may  accrue  to  him,  her  or  them, 
by  reason  of  any  order  or  decree  granted  or  entered  on  tiie 
prayer  of  such  petition  as  aforesaid,  or  by  reason  of  any  deliv- 
ery made  upon  or  under  the  same,  and  whatever  injury  shall 
be  sustained  by  any  person  or  party  under  or  by  reason  of  such 
order,  decree  or  delivery,  actions  of  debt  oi-  of  ^cire  facias  may 
be  instituted  on  said  bond,  as  often  as  the  circumstances  may 
require,  against  the  petitioner,  his  surety  or  sureties,  and  their 
respective  heirs,  executors  or  administrators,  and  in  each  case 
a  judgment  shall  be  entered  and  execution  shall  be  issued  only 
for  such  damage  as  the  party  plaintiff  may  have  sustained  to- 
gether with  the  costs  of  suit.     Id.  sec.  3. 

Costs  and  counsel  fees  to  respondents  shall  be  paid  !>y 
petitioner : 

The  costs  of  such  proceeding,  together  with  a  reasonable  al- 
lowance to  be  fixed  by  the  court  for  counsel  fee  to  the  resjionfi- 
ents,  shall  in  every  case  arising  hereunder  be  fully  paid  by  the 
petitioner  before  the  respondents  shall  be  required  to  comply 
with  the  order  or  decree  made  upon  such  petition.     Id.  sec.  4. 


696  PENNSYLVANIA    DECISIONS. 


DECISIONS  AFFECTING  WAREHOUSEMEN. 

A. 

Bailment — Bailee  not  required  to  open  packages. 

No  bailee  is  bound,  on  giving  a  receipt  for  goods,  to  open  the 
packages  to  see  if  they  correspond  with  the  name  given  to  them. 
If  he  acts  in  good  faith,  he  is  not  answerable  to  another  who 
advanced  money  on  the  goods  on  the  faith  of  the  transaction; 
for  the  reliance  was  not  properly  on  him,  but  upon  the  honesty 
of  the  man  who  procured  the  receipt.  Grier  v.  Nickle,  1  Amer. 
L.  Reg.  119. 

Same — No  implication  of  sale. 

If  a  man  places  his  property  in  the  hands  of  another,  such 
person  being  engaged  in  the  business  of  receiving  property  of 
a  like  kind  for  storage,  there  is  no  implication  that  such  bailee 
is  the  owner  thereof.     Mann  v.  Eiiglish,  7  Pa.  C.  C.  Rep.  637. 

Same — Burden  of  proof. 

The  law  will  not  intend  negligence  on  the  part  of  a  bailee, 
who  will  be  presumed  to  have  acted  according  to  his  trust  until 
the  contrary  is  shown.  But  to  throw  the  burden  of  proof  on 
the  l);ulor,  it  is  necessary  that  the  bailee  should  show  how  the 
goods  wTre  lost.     Clark  &  Co.  v.  Spencer,  10  Watts,  335. 

B. 

Ordinary  care — Liable  for  negligence. 

A  bailee  for  hire  is  bound  to  exercise  ordinary  care  and  dili- 
gence and  he  will  be  liable  only  where  the  loss  or  damage  results 
from  a  failure  to  exercise  such  degree  of  care.  Tower  et  al.  v. 
Grocers'  Supply  &  Storage  Co.,  159  Pa.  St.  106;  McCarty  v.  N.  Y. 
&  E.  R.  R.  Co.,  30  Pa.  St.  247. 

Delivery — To  a  warehouseman — Facts  which  do  not  constitute 
a  valid  delivery. 

In  an  action  charging  a  railroad  company  with  liability  for 
the  loss  of  goods  which  were  alleged  to  have  been  delivered  to 
it.  the  evidence  showed  as  follows:  That  about  seven  o'clock 


PENNSYLVANIA.  097 

in  the  evening,  just  about  dark,  when  (he  defend:! nf.s  ware- 
house was  closed  and  locked  for  the  night,  that  the  drayman 
of  the  plaintiff  opened  the  upper  door  and  put  the  goods  in, 
there  being  no  one  on  the  grounds  in  charge  oi  the  wareiioase 
and  no  one  there  representing  the  company  to  receive  the  goods. 
There  was  further  evidence  which  showed  thai  the  (hayiuaii 
had,  shortly  after  he  deposited  the  goods  a.s  above  stated,  called 
out  to  the  bill  clerk  of  the;  railroad  that  he  had  left  some  goods 
of  the  plaintiff's  and  that  he  wanted  the  clerk  to  bill  and  ship 
them  the  next  morning.  This  was  not  addressed  to  the  shii>- 
ping  clerk  nor  to  the  freight  agent.  Furthermore,  the  drayman 
knew  that  the  bill  clerk  was  not,  in  fact,  that  day  on  duty. 
Held  this  was  not  a  delivery  to  an  authorized  agent  of  the 
defendant  and  therefore  the  defendants  were  not  liable.  Spof- 
jord  V.  Railroad  Co.,  11  vSuper.  Ct.  97;  Leidij  v.  (Juaker  City,  etc., 
Warehouse  Co.,  180  Pa.  St.  323. 

Conversion — When  demand  and  refusal  unnecessary. 

Ordinarily  a  sufficient  demand  and  a  refusal  are  both  essential 
to  constitute  conversion.  The  demand  is  nothing  without  the 
refusal,  but  where  there  was  not  only  a  denial  of  the  title  in  the 
owner  but  an  assertion  of  title  in,  and  delivery  of  the  goods, 
to  another  after  notice  of  the  dispute  between  them,  it  was 
held  that  this  clearly  constituted  a  conversion  of  the  proj^erty. 
Clowes  V.  Hughes  Bros.,  3  Super.  Ct.  561 ;  Taylor  v.  Hanlun,  103 
Pa.  St.  504;  Hinckley  v.  Baxter,  13  Allen,  139. 

H. 

Lien — Specific  and  not  general  in  its  nat^tre. 

A  warehouseman  has  a  specific,  not  a  general  lien  on  the  good.s 
stored  with  him,  but  he  may  deliver  a  part  and  retain  the 
residue  for  his  charges  on  all  the  goods  received  by  him  under 
the  same  bailment,  provided  the  ownership  of  the  whole  is  in 
the  same  bailor.  Steinman  v.  Wilkins,  7  ^^'atts  A:  Sargeant.  4&\. 
(See  note  given  with  this  case  in  42  Amer.  Dec.  257.) 

K. 

Attachment— Warehouseman  may  be  made  garnishee— EtUi tied 
to  protection  hy  bond  if  negotiable  receipts  hare  becu  i.'<surd. 

If  a  warehouseman  has  i-ssued  negotiable  warehouse  receipts 


698  PENNSYLVANIA   DECISIONS. 

lor  goods  deposited  with  liim  and  he  is  made  garnishee  in  a  suit 
against  his  depositor,  he  is  entitled  to  a  bond  from  the  plaintiff 
indemnifying  him  against  any  loss  which  he  might  suffer  owing 
to  negotiation  of  the  receipts  into  the  hands  of  bona  fide  holders. 
Rondebush  v.  Hollis  et  ah,  defendants,  and  The  Meadville  Dis- 
tilling Co.,  garnishee,  21  Pa.  C.  C.  Rep.  324. 

M. 

Pledge — Without  knowledge  of  bailee — Replevin. 

If  the  bailor  of  goods  deposited  with  a  warehouseman  pledge 
them  by  a  delivery  of  a  receipt  (not  a  ' '  warehouse  receipt ")  issued 
by  an  employee  of  the  warehouseman  without  authority,  and 
the  warehouseman  having  no  notice  of  such  pledge,  nor  of  such 
recei{)t,  delivers  the  goods  to  another,  a  purchaser  of  a  valid 
receipt  subsequently  issued  by  the  warehouseman  himself,  such 
bailor  cannot  maintain  replevin  against  the  warehouseman  for 
the  goods.     People's  Bank  v.  Gaijley,  92  Pa.  St.  518. 

Same — Sajne — Requisites  of  such  a  notice. 

A  bailee  issued  a  receipt,  which  was  not  a  negotiable  ware- 
house receipt  within  the  meaning  of  the  statutes  of  this  state, 
to  one  who  had  deposited  property  with  him.  At  the  time  of 
the  issuance  thereof  the  attorney  of  the  pledgor  stated  to  the 
warehouseman's  foreman  that  the  receipt  was  to  be  used  for 
the  purpose  of  borrowing  money  thereon  and  in  his  presence 
indorsed  the  receipt  as  follows : 

"Please  deliver  inclosed  pig-iron  to  W.  H.  Taber,  Esqre., 
cashier,  or  order. 

"Henry  G.  Morris. 
"Per  Alexander  Irwin,  Att'y." 

In  an  action  brought  by  the  bank  with  which  the  receipt  had 
been  pledged,  against  the  defendant  warehouseman,  it  was 
held  that  the  judgment  given  for  the  defendant  was  correct, 
for  the  above  transaction  did  not  constitute  such  notice  to  the 
defendants  as  would  make  them  liable;  that  it  was  the  duty  of 
the  plaintiff  bank  either  to  have  insisted  on  regular  warehouse 
receipts,  or  to  have  immediately  notified  the  defendant  that 
it  held  the  receipts,  which  he  had  issued  for  this  iron,  as  secu- 


PENNSN  |,\  AMA.  fj'Ji» 

rity  for  a  loan,  but  as  it  did  nciiher  oi  these  thiiifrs,  and  that 
the  loss  was  the  resulting  consequence.  People's  Bank  v.  EUiny 
d-  Groomc,  108  Pa.  St.  258. 

Injury  by  water — Evidence — Instruction  to  jury. 

The  plaintiff,  the  owner  of  certain  household  goods,  sued  tlie 
defendant,  a  warehouseman,  alleging  that  th(;  same  had  been 
injured  by  dampness  during  the  time  when  they  wei-e  st<jred. 
The  defendant  contended  that  the  goods  were  so  damaged  l)e- 
fore  he  received  them  and  offered  evidence  to  show  that  his 
warehouse  was  impervious  to  rain.  The  defendant  then  re- 
quested the  court  to  instruct  the  jury  to  find  for  him;  this  was 
refused,  the  question  of  negligence  being  left  to  the  jury,  a  verdict 
was  found  for  the  plaintiff.  The  defendant  took  a  writ  of  error 
upon  which  the  judgment  of  the  lower  court  was  affirmed. 
Doyle  V.  Mays,  7  Atl.  Rep.  747. 

N. 

Loss  by  fire — Negligence  must  be  shown. 

In  an  action  against  a  warehouseman  for  the  loss  of  goods  by 
fire,  the  burden  of  proof  is  upon  the  plaintiff  to  show  that  the 
fire  occurred  as  a  result  of  the  negligence  or  want  of  ordinary 
care  on  the  part  of  defendant.  Tower  et  al.  v.  Grocer's  Supply 
&  Storage  Co.,  159  Pa.  St.  106. 

Same — Same — Instructions  to  jury. 

The  plaintiff  who  had  stored  gootls  with  the  defendant  ware- 
houseman alleged  that  at  the  time  of  the  storage  she  had  in- 
structed the  assistant  in  the  office  of  the  defendant  to  have  the 
goods  insured.  Plaintiff  testified  that  immediately  after  the 
fire,  she  called  upon  the  defendant  and  stated  that  .«he  had  left 
orders  for  such  insurance  to  be  placed  on  her  good.".  It  was 
contended  by  the  warehouseman  that  as  the  proofs  failed  to 
show  essential  elements  of  parol  contract  to  insure,  no  agree- 
ment was  proved.  It  was  held  that  as  the  defendant  was  en- 
gaged in  the  storage  business  and  had  made  it  a  part  of  surh 
business  to  affect  insurance  when  requested  to  do  so  by  its 
customers  that  a  contract  made  for  that  object  lieiug  in  the 
direct  line  of  its  business  would  not  be  one  of  insurance  re- 


700  PENNSYLVANIA   DECISIONS. 

quiring  certain  necessary  elements  to  constitute  it,  but  would 
be  an  undertaking  in  connection  with  the  bailment.  A  refusal 
to  instruct  the  jury  that  the  burden  was  upon  the  plaintiff  to 
prove  that  at  the  time  of  the  alleged  agreement  of  insurance 
was  entered  into  that  the  amount,  rate,  terms,  premium,  and 
risk  to  be  insured  against  wore  all  to  have  been  arrived  at,  there- 
fore held  not  to  be  error.     Id. 

Same — Pleading — Insufficiency  of  declaration. 

The  plaintiff  sued  the  defendant,  a  warehouseman,  for  goods 
which  he  alleged  were  destroyed  by  fire  while  stored  in  the 
latter's  warehouse.  The  declaration  failed  to  state  that  there 
was  any  contract  between  the  parties  by  which  the  defendant 
was  to  keep  the  goods  insured,  also  that  the  loss  resulted  from 
gross  negligence  on  the  part  of  the  defendant  and  that  the 
defendant  was  a  bailee  for  hire.  The  demurrer  to  such  a  dec- 
laration was  sustained  with  leave  to  amend.  Heaton  v.  Knowles, 
14  W.  N.  Cas.  74. 

Cold  storage — Damage  to  goods — Burden  of  proof. 

In  an  action  against  a  warehouseman  for  the  recovery  of  the 
value  of  eggs  alleged  to  have  been  injured  while  in  cold  storage, 
the  court  instructed  the  jury  that  the  plaintiff  must  establish 
that  during  the  time  the  eggs  were  stored  they  were  injured 
by  the  act  of  the  defendant,  and  by  his  act  alone,  because  if 
they  were  injured  by  any  other  act  such  as  inherent  decay, 
etc.,  the  defendant  was  not  responsible;  further  that  the  plain- 
tiff should  show  by  evidence  that  the  eggs  were  in  a  good  and 
satisfactory  condition  to  be  stored  at  the  time  the  defendant 
received  them  and  that  the  removal  of  the  eggs  from  another 
warehouse  to  that  of  the  defendant  did  not  injure  the  eggs. 
The  above  charge  held  correct  on  appeal.  Boswell  v.  Collins, 
8  Atl.  Rep.  845. 

Same — What  degree  of  negligence  must  be  shown — Question  for 
the  jury. 

The  defendant  warehousemen  were  sued  for  the  value  of 
certain  poultry  which  the  plaintiff  alleged  had  been  spoiled 


PENNSYLVANIA.  701 

while  stored  in  their  cokl  storage  warehouse.  The  court  in- 
structed the  jury  tiuit  the  whole  ea.-^c  turned  u|.(.n  ih.-  que.-<u.)n 
as  to  who  had  caused  tlie  injuiy  to  the  poult r}-.  'I'hat  if  they 
found  that  the  tlefendants  had  exercised  (hie  can;  in  its  preser- 
vation, or  that  the  pouUry  was  not  in  -rood  condition  when 
brought  to  the  warehouse  of  the  defendant  that  tlieir  verdict 
should  be  for  the  defentlant.  Further,  that  neghgence  on  tiie 
part  of  the  defendant  could  not  be  assumed  from  the  mere 
fact  that  the  goods  of  the  plaintift"  were  injured,  hut  that  negh- 
gent  acts  or  omissions  nmst  be  conclusively  jiroved.  'rhe 
court  also  charged  that  if  the  injury  to  the  poukry  resulted 
from  any  other  cause  than  the  negligence  of  the  defendant,  no 
matter  what  that  cause  miglit  be,  tlie  defendants  were  not 
responsible.  Finally  that  the  jury  could  consider  the  fact  that 
the  plaintiff's  goods  were  of  a  very  perishable  nature  as  relieving 
or  tending  to  relieve  the  defendants  from  the  charge  tliat  the 
poultry  was  s})oiled  through  their  negligence.  Wrdict  was 
given  for  the  plaintiff,  and  on  appeal  it  was /te/r/ that  tlie  above 
charge  was  correct,  as  the  jury  had  had  the  question  to  deter- 
mine as  to  whether  the  loss  and  injury  suffered  by  the  plaintiff 
was  occasioned  exclusively  by  the  acts  or  omissions  of  the 
defendants.  Leidy  v.  Quaker  City  C.  S,  &  W.  Co.,  180  Pa. 
St.  323. 

Evidence — Negligence — Burden  of  proof  on  plaintiff. 

In  an  action  against  one  liable  as  a  warehouseman  for  the 
loss  of  goods  destroyed  by  fire,  the  burden  is  upon  the  plain- 
tiff to  show  that  the  fire  was  the  result  of  the  defendant's  neg- 
ligence.    Nat.  Line  Steamship  Co.  v.  Smart,  107  Pa.  St.  402. 

Same — Must  account  for  failure  to  deliver. 

In  an  action  against  a  warehouseman  wlieie  it  is  shown  that 
he  failed  to  deliver  goods  intrusted  to  him  on  demand,  it  was 
held  that  he  must  show  that  the  goods  were  deHvered  to  some- 
body by  the  authority  of  the  plaintiff.  Simply  being  unai)le 
to  account  for  the  fact  that  the  goods  were  not  present  when 
the  defendant  desired  to  redelivei-  them  is  no  excuse.  Hocvdler 
et  al.  V.  Myers  et  al.,  158  Pa.  St.  401. 


702  PENNSYLVANIA   DECISIONS. 

Warehouse  receipts — Must  be  issued  by  a  warehouseman — He 
must  have  possession  of  the  property. 

A  person  in  charge  of  a  warehouseman's  wharf,  or  a  ware- 
houseman's clerk,  cannot  issue  a  vahcl  warehouse  receipt.  In 
such  a  case  the  person  attempting  to  issue  the  receipt  is  in 
charge  of  the  goods,  it  is  true,  but  he  has  not  possession  as  re- 
quired by  the  act  of  September  24,  1866;  he  holds  for  another, — 
his  employer.     People's  Bank  v.  Gayley,  92  Pa.  St.  518. 

Same — Must  be  issued  by  a  warehouseman — Goods  must  not 
belong  to  him. 

The  statutes  of  this  state  regarcHng  the  issuance  of  ware- 
house receipts  are  in  derogation  of  the  common  law  and  estab- 
lish an  exception  to  the  general  course  of  business  which  is 
conducted  on  the  presumption  that  the  title  of  personal  prop- 
erty accompanies  possession.  To  bring  a  case,  therefore,  within 
the  statute,  all  of  the  requisites  thereof  must  be  shown  to  exist. 
In  order  that  a  warehouse  receipt  shall  be  vahd  it  must  be  issued 
by  a  warehouseman  and  not  against  his  own  goods  and  the 
warehouseman  must  be  regularly  engaged  in  the  business  of 
warehousing.  Trademen's  Nat.  Bank,  etc.,  v.  Kent  Mfg.  Co., 
Jagode  et  al,  186  Pa.  556;  Moors  v.  Jagode,  195  Pa.  St.  163; 
People's  Bank  v.  Troutman,  9  W.  N.  Cas.  54. 

Same — Revenue  ta.r  on — Postal  card. 

A  warehouseman  was  in  the  custom  of  notifying  consignees 
by  a  postal  card  of  the  arrival  of  their  goods.  The  card  stated 
that  the  goods  had  been  received  and  were  subject  to  the  order 
of  the  consignee ;  further,  that  if  not  removed  in  ten  days  they 
would  be  stored,  held  that  such  a  card  is  not  taxable  under  the 
War  Revenue  Act  which  imposed  a  tax  on  warehouse  receipts. 
That  the  Revenue  Act  imposed  a  tax  upon  the  receipt,  not  upon 
the  transaction  and  that  this  was  not  a  warehouse  receipt. 
Merchant's  Warehouse  Co.  v.  McClain,  112  Fed.  Rep.  787. 

Same — Negotiability — Bank  holding  as  collateral  a  bona  fide 
holder. 

A  warehouse  receipt  which  states  "this  certificate  is  trans- 


PENNSYLVANIA.  708 

ferable  by  delivery"  is  negotiable  and  its  transfer  an<l  de- 
livery operates  in  law  as  a  delivery  of  the  property  itself.  If  a 
bank  accepts  such  a  receipt  in  good  faith  as  security  for  mcncy 
loaned,  it  is  not  only  a  holder  for  value  but  also  a  houa  fule 
holder  of  the  receipt.  Exchange  Bank  v.  Uhlman-Uoldsboruwjh 
Co.,  5  Pa.  Dist.  Rep.  480;  Miller  v.  Browarsky,  VM)  I>a  St  livu 
372. 

Same— Negotiability— Assignee  for  benefit  of  rrrditors  not  a 
bona  fide  holder. 

A  voluntary  assignee  for  benefit  of  creditors  is  not  a  bona  fide 
purchaser  for  value  of  warehouse  receijjts  in  the  hands  of  his 
assignor.  He  is  merely  the  representative  of  his  assignor  and 
he  enjoys  only  such  rights  as  the  assignor  had.  Therefore  where 
one  who  had  deposited  goods  in  a  warehouse  and  pledged  some 
of  the  receipts  therefor  with  a  bank  as  security  for  a  loan,  such 
tlepositor  afterward  making  an  assignment  for  the  benefit  of  iiis 
creditors,  it  was  held  that  his  assignee  was  estopped  to  deny  the 
title  of  the  bank  to  the  goods  represented  by  the  receipts  which 
it  held,  it  appearing  from  the  evidence  that  the  dejjositor  had 
withdrawn  some  of  the  goods  deposited  and  substituted  others 
in  the  place  thereof.  Brooks,  Miller  &  Co.  v.  Western  National 
Bank,  16  W.  N.  Cas.  298. 

Same — Same — Delivery  of  goods  in  settlement  of  an  antecedent 
debt  not  a  sale  as  will  defeat  pledgee. 

Certain  goods  were  consigned  to  the  plaintiff  bank  which 
held  the  bills  of  lading  and  other  evidences  of  title.  .\s  a  matter 
of  fact,  the  bank  was  not  the  owner  of  the  goods  but  held  them 
simply  as  pledgee  and  the  goods  were  delivered  to  the  con- 
signee. The  bank  delivered  these  evidences  of  title  and  took 
in  return  a  storage  receipt,  which  however  allowcil  the  con- 
.signee  to  sell  the  goods  but  to  account  for  the  proceeds  and  pay 
to  the  plaintiff  the  amount  due  it.  lender  these  receipts  the 
bank  retained  the  ownership  of  the  goods  and  the  consignee 
acquired  no  title  which  would  avail  it  or  its  creditors.  It  had, 
however,  authority  to  sell,  and  any  valid  exercise  of  that  power 
would  divest  the  bank  of  its  title.  The  defendants  were  cas- 
tomers  of  the  consignee  and  had  sent  to  him  a  check  in  payment 


704  PENNSYLVANIA   DECISIONS. 

of  a  note  which  had  been  previously  given  him.  The  consignee 
failed  to  apply  the  proceeds  of  the  check  to  the  payment  of  these 
notes  and  the  defendants  were  obliged  to  pay  them  at  maturity. 
Subsequently  the  consignee  delivered  to  the  defendants  the 
property  ujDon  which  the  plaintiff  bank  had  loaned  money  to 
the  consignee.  In  the  action  brought  by  the  bank  against  the 
defendants  for  the  recovery  of  the  goods,  it  was  held  that  the 
delivery  to  the  defendants  of  the  goods  in  question  was  not  a 
sale  in  the  ordinary  course  of  business,  such  as  would  be  a  valid 
exercise  of  the  authority  to  sell  contained  in  the  storage  receipts. 
Therefore,  judgment  which  was  given  for  the  plaintiff  was  afr 
firmed  on  appeal.  Canadian  Bank  v.  Baiim  &  Sons,  187  Pa. 
St.  48;  Brown  Bros.  &  Co.  v.  Billington,  163  Pa.  76. 

Same — Same — Distiller's  certificate — Indorsee  estopped. 

The  defendants  had  indorsed  distiller's  certificates  for  a  quan- 
tity of  whiskey  to  the  purchaser  thereof  who  subsequently 
transferred  the  same  to  the  plaintiff.  The  defendants  after- 
wards attached  the  whiskey  while  in  the  warehouse  in  an  action 
against  the  purchaser.  The  plaintiff  brought  an  action  against 
the  defendants  alleging  that  the  defendants  were  estopped  from 
raising  the  question  as  to  the  title  of  the  plaintiff  by  the  fact 
that  they  had  indorsed  the  certificates  and  that  as  a  result 
thereof  the  plaintiff  had  obtained  possession  of  them.  Tliis 
held  to  be  correct  and  judgment  given  for  the  defendant  was 
affirmed.     Rosenham  v.  Batjer,  154  Pa.  St.  544. 

R. 

Bills  of  lading — Effect  of  statute  declaring  them  negotiable — 
Not  "negotiable  instruments.^' 

A  bill  of  lading,  of  which  the  consignee  has  obtained  pos-" 
session  in  a  fraudulent  manner  and  which  has  been  negotiated  to 
an  innocent  purchaser,  does  not  pass  the  title  to  such  purchaser 
as  against  the  person  who  held  its  possession  lawfully  and 
from  whom  it  was  stolen.  Where,  therefore,  the  consignee 
fraudulently  obtained  possession  of  an  original  bill  of  lading 
which  was  attached  to  a  draft  and  presented  to  him  for  accept- 
ance by  a  messenger  from  the  bank,  who  afterwards  sold  the 
original  bill  of  lading,  it  was  held  that  the  title  to  the  goods 


PENNSVI,\  AMA.  TO'i 

remained  in  the  bank.  The  court  furtlu-r  luld  that  it  was  not 
the  intention  of  tlic  legislature  when  il  dcclanMl  that  hills  i»f 
lading  should  be  negotiable  by  indorsement  in  the  .same  ntdunvr 
as  bills  of  exchange,  that  the  nature  and  eharacter  of  bills  (jf 
lading  was  thereby  put  in  all  respects  on  the  footing  of  instru- 
ments which  arc  the  representatives  of  money,  conunonly  known 
as  "negotiable  instruments."  Shaw  v.  Railroad  Co.,  101  U.  S. 
557. 
45 


'06  KHUUt:    ISLAND    LAWS. 


CHAPTER  XXXIX. 
RHODE  ISLAND. 

LAWS   PEKTAL\IN(J    TO    WAREHOUSEMEN. 

Lieu  of  warehousemen — W.irehousenieu  shall  have  a  lien 
on  goods  stored  with  them  : 

Every  public  warehouseman  or  person  lawfully  engaged  ex- 
clusively in  the  business  of  storing  goods,  wares  and  merchandise 
for  hire  shall  have  a  lien  for  his  storage  charges,  for  money  ad- 
vanced by  him  for  freight,  cartage,  labor,  weighing  and  cooper- 
ing paid  on  goods  deposited  and  stored  with  him;  and  such  lien 
shall  extend  to  and  include  all  legal  demands  for  storage  and 
said  above  described  expenses  paid,  which  he  may  have  against 
the  owner  of  said  goods ;  and  it  shall  be  lawful  for  him  to  detain 
said  goods  until  such  lien  is  paid.  General  Laws,  Rhode  Island, 
1896,  ch.  206,  sec.  24. 

When  goods  stored  may  be  sold  by  warehouseman  : 

Every  public  warehouseman  who  shall  have  in  his  possession 
any  property,  by  virtue  of  any  agreement  oi'  warehouse  receipt 
for  the  storage  of  the  same,  on  wliich  a  claim  for  storage  is  at 
least  one  year  overdue,  may  proceed  to  sell  the  same  at  public 
auction,  and  out  of  the  proceeds  may  retain  the  charges  for 
storage  of  said  goods,  wares,  and  meichandise,  and  an}'  advance 
that  may  have  been  made  thereon  l)y  him  or  them,  and  the 
expense  of  advertising  and  sale  thereof:  but  no  sale  shall  be 
made  until  after  the  giving  of  a  printed  or  written  notice  of 
such  sale  to  the  person  or  persons  in  whose  name  such  goods, 
wares  and  merchandise  were  stored,  requiring  him.  her  or  them 
to  pay  the  arrears  or  amount  due  for  such  storage,  and,  in  case 
of  default  in  so  doing,  that  such  goods,  wares  anrl  merchandise 
will  be  sold  to  pay  tlie  same  at  a  time  and  place  to  be  specified 
in  such  notice     Id.  ch.  206,  sec.  25. 


RIIODi:    ISLAND.  707 

Notice  of  saJe,  how  to  be  sorve<I  : 

The  notice  reciuiied  l.y  the  h.st  preceding  section  sIkiII  be 
served  by  deliverinfr  it  to  the  person  storing  the  same,  or  by 
leaving  it  at  his  usual  place  of  abode,  or,  if  a  corporation,'  at  the 
office  of  such  corporation,  if  within  the  state,  at  least  thirty  days 
before  the  time  of  such  sale,  and  a  ivturn  of  the  scrvic-  shall  Ix- 
made  by  some  officer  authorized  to  serve  ciNil  proci-ss,  or  by 
some  other  person  with  an  affidavit  of  the  truth  oi  the  return. 
If  the  party  storing  the  goods  cannot  with  reasonable  diligence 
be  founci  within  the  state,  or,  in  case  of  a  corporation,  if  it  has 
no  office  within  the  state,  then  such  notice  shall  be  given  by 
publication  once  in  each  week  for  three  successive  weeks,  the 
last  publication  to  be  at  least  thirty  days  liefore  the  time  of 
such  sale,  in  a  newspaper  published  in  the  city  or  town  when- 
such  warehouse  is  located,  or,  if  there  is  no  such  paper,  in  one 
of  the  principal  newspapers  published  in  the  county  in  which 
said  warehouse  is  located.  In  the  event  that  the  party  storing 
such  goods  shall  have  parted  with  his  title  to  the  same,  and  the 
purchaser  shall  have  notified  the  warehouseman  with  his  ad- 
dress, such  notice  shall  be  given  to  such  person  in  lieu  of  the 
person  storing  the  goods.     Id.  ch.  206.  sec.  2G. 

Record  to  be  kept  of  surplus  proceeds  of  sales  : 

Such  warehouseman  shall  make  an  entry  in  a  book  kept  for 
that  purpose  of  the  balance  or  surplus  of  the  proceeds  of  the 
sale,  if  any,  and  such  balance  or  surplus  shall  i)c  j>aid  over  to 
such  person  or  persons  entitled  thereto  on  demand;  and  if  such 
balance  or  surplus  is  not  called  for  or  claimed  by  said  |)arty  or 
owner  of  said  property  within  six  months  after  such  sale,  such 
balance  or  surplus  shall  be  paid  by  such  warehouseman  to  the 
general  treasurer,  who  shall  pay  the  same  to  the  parties  entitlerj 
thereto,  if  called  for  or  claiiued  by  the  rightful  owjier  within 
five  years  after  the  receipt  thereof;  and  such  warehouseman 
shall,  at  the  same  time,  file  with  said  general  treasurer  an  affi- 
davit in  which  shall  be  stated  the  name  and  place  of  r(>si<lence. 
so  far  as  known,  of  the  person  whose  property  has  been  sold, 
and  the  price  at  which  it  was  sold,  the  name  and  residence  of 
the  auctioneer  making  the  .sale,  together  with  a  copy  of  the 
notice  served  or  published,  and  how  served.     Such  notice  and 


708  RHODE    ISLAND    LAWS. 

affidavit,  when  filed  as  above  provided,  shall  be  admitted  as 
evidence  of  the  giving  of  the  notice.     Id.  ch.  206,  sec.  27. 

Inspection,  sale  and  keeping  of  inflammable  and  explosive 
fluids. 

Peualty  for  keeping  or  selling  inflammable  or  explosive 
fluids  not  inspected  : 

Every  person  who  shall  keep  or  offer  for  sale  in  any  place  or 
building  within  the  state,  petroleum  oil  or  any  product  thereof, 
or  shall  keep  or  offer  for  sale  any  mixture  of  naphtha  or  inflam- 
mable fluids  for  illuminating  purposes  that  will  flash  or  inflame 
at  a  less  temperature  or  fire  test  than  one  hundred  and  ten 
degrees  Fahrenheit,  or  that  has  not  been  inspected,  tested  and 
the  cask,  barrel  or  package  containing  the  same  marked  with 
the  degrees  Fahrenheit  at  which  the  contents  thereof  will  flash 
or  inflame  in  manner  provided  by  section  two  of  this  chapter, 
and  every  person  who  shall  empty  any  petroleum  oil  or  any 
product  thereof  or  any  mixture  of  naphtha  or  inflammable 
fluids  which  shall  be  at  any  time  brought  into  the  state  out  of 
the  original  packages  in  which  it  is  brought  into  the  state,  until 
the  same  has  been  inspected  b}^  an  inspector  of  kerosene,  shall 
be  fined  not  less  than  fifty  dollars  or  be  imprisoned  not  less 
than  six  months,  and  the  name  of  every  such  person  shall  be 
published  in  some  newspaper  published  in  or  nearest  to  the 
town  where  such  offense  was  committed.     Id.  ch.  144,  sec.  1. 

Duties  of  the  inspector  of  kerosene — Fees : 

The  inspector  of  kerosene  shall  inspect  and  test  all  petroleum 
oil,  kerosene  and  coal  oil  and  their  compounds  and  every  product 
or  mixture  thereof  which  may  be  manufactured,  offered  for  sale 
or  stored  in  the  state,  and  every  inspector  shall  legibly  mark 
upon  every  cask,  barrel  or  package  so  tested  by  him  the  degrees 
Fahrenheit  at  which  the  contents  thereof  are  inflammable  or 
will  flash  or  explode,  by  cutting,  branding  or  painting  the  same 
thereon,  together  with  his  official  brand  or  stamp  and  the 
initials  of  his  name.  The  owner  of  kerosene  or  other  fluids 
made  liable  to  inspection  by  the  provisions  of  this  chapter, 
shall  pay  to  the  inspector  who  shall  inspect  the  same  the  sum 


i;iiM|)i:  isi,.\Ni>.  70«» 

of  one  dollar  for  every  lioui-  rmiiloycd  in  sucli  insjtcction.     I<1. 
ch.  144,  sec.  2. 

Sale  for  exportation : 

Nothing  contained  in  the  preceding  two  sections  shall  bo  so 
construed  as  to  apply  to  the  sale  of  petroleum  nr  any  of  its 
products  for  exportation  from  the  state.     Id  ch.  Ill,  .sec.  li. 

How  to  be  kept  tor  sale  or  stored— Amount  iiinited  : 

Petroleum  oil  or  any  of  its  products  or  the  c(jm|)<)unds  thereof 
that  are  not  inflannnable  or  which  do  not  Hush  at  a  less  tem- 
perature or  fire  test  than  one  hundred  and  ten  degrees  Fahren- 
heit, may  be  kept  on  sale  or  stored  in  the  state  in  tlie  following 
manner  only  and  subject  to  the  terms  and  condition.s  herein- 
after named,  namely:  In  quantities  not  exceeding  one  hundred 
and  fifty  gallons,  in  any  store  or  warehouse;  in  (|u;intitie.s  ex- 
ceechng  one  hundred  and  fifty  gallons  and  not  exceeding  ten 
barrels,  in  cellars  at  least  four  feet  below  the  surface  of  the 
street,  properly  ventilated,  and  under  buildings  no  part  of  which 
is  occupied  as  a  dwelling-house;  in  (juantities  exceeding  ten 
barrels  and  not  exceeding  one  hundred  barrels,  in  warehouses 
constructed  of  brick,  stone  or  iron  especially  adapttnl  to  that 
purpose;  in  quantities  exceeding  one  hundred  barrels,  in  ware- 
houses constructed  of  brick,  stone  or  iron  .situated  more  than 
fifty  feet  distant  from  the  nearest  building  or  wharf,  or.  if 
within  fifty  feet  from  the  nearest  l)uilding  or  wiiarf,  there  shall 
be  a  wall  of  brick  or  stone  between  said  warehouse  and  such 
building  or  wiiarf  at  least  ten  feet  high  and  sixteen  inches  thick ; 
and  all  such  Avarehouses  shall  be  so  constructed  and  arranged 
that  no  overflow  or  escape  of  the  articles  therein  stored  beyond 
the  limits  thereof  can  possibly  take  i)lace.     Id.  eh.  144,  sec.  4. 

Inspectors  to  examine  the  premises  where  petroleum  oil  In 
stored : 

The  inspectors  of  kerosene  shall  examine  from  time  to  time 
all  premises  within  their  res|iective  towns  wherein  fx'troleuni 
oil  or  any  ])roduct  tliereof  or  any  mixture  of  naphtha  or  in- 
flammable fluid  for  illumin.itinir  i»urposes  is  .stored  or  kept, 
and  the  owners  and  occupants  of  all  such  premises  shall  allow 


710  RHODE    ISLAND    LAWS. 

every  inspector  of  kerosene  at  all  times  to  enter  upon  and  in- 
spect such  premises.     Id.  ch.  144,  sec.  5. 

Petroleum  oil,  etc.,  not  to  remain  in  open  air  or  on  side- 
walk : 

In  no  case  shall  petroleum  oil  or  any  product  thereof  or  any 
mixture  of  naphtha  or  inflammable  fluid  for  illuminating  pur- 
poses be  allowed  to  remain  in  the  open  air  or  on  any  sidewalk 
beyond  the  front  line  of  any  building  or  in  any  street  for  a 
longer  time  than  is  actually  necessary  for  the  storage,  ship- 
ment or  delivery  of  the  same,  nor  between  the  time  of  sunset 
of  any  one  day  and  sunrise  of  the  following  day.  Id.  ch.  144, 
sec.  6. 

Penalty  for  violating  provisions  of  chapter,  or  meddling 
with  official  brand : 

Every  person  who  shall  Adolate  any  of  the  foregoing  provi- 
sions of  this  chapter  or  shall  knowingly  or  willfully  alter,  efface 
or  destroy  any  official  mark  or  brand  after  the  same  has  been 
placed  by  the  inspector  of  kerosene  or  his  deputies  upon  any 
barrel,  cask  or  package  in  accordance  with  the  provisions  of 
this  chapter,  shall  be  fined  not  less  than  five  hundred  dollars 
nor  more  than  one  thousand  dollars  or  shall  be  imprisoned  not 
exceeding  six  months.     Id.  ch.  144,  sec.  7. 

Penalties  for  putting  petroleum,  etc.,  not  inspected,  into 
a  branded  cask  : 

Every  person  who  shall,  for  the  purpose  of  sale,  put  or  cause 
to  be  put  into  any  cask,  barrel  or  other  package  which  shall 
have  been  branded  or  marked  by  an  inspector  of  kerosene  in 
manner  herein  prescribed,  any  petroleum  oil,  kerosene  or  coal 
oil  or  naphtha  or  inflammable  fluid  or  any  mixture,  product 
or  component  thereof  or  of  either  thereof,  intended  for  sale, 
the  same  not  having  been  first  tested  by  such  inspector  in  ac- 
cordance with  the  provisions  of  this  chapter,  shall  be  fined  not 
less  than  five  hundred  dollars  nor  more  than  one  thousand  dol- 
lars or  shall  be  imprisoned  not  exceeding  six  months;  and  the 
name  of  every  person  convicted  of  any  violation  of  this  section 
shall  be  published  in  some  newspaper  published  in  or  nearest 


RHODE    ISLAND.  711 

to  the  town  where  such  offense  was  coinniittcil.     Id.  di.   Ill, 
sec.  8. 

Appointment  of  inspectors— Manner  of  sfoiiii;,'  May  l)»* 
prescribed  by  ordinances  — Penalties  : 

The  town  councils  of  the  several  towns,  and  the  city  councils 
of  the  cities  of  Newport  and  Providence,  shall  appoint  annually 
one  or  more  inspectors  of  petroleum  oil,  kerosene  and  cdal  (.11, 
their  products,  compounds  and  components,  and  may  limit  and 
prescribe  by  ordinance  the  place  or  i)laces  and  manner  of  stor- 
ing or  safe-keeping,  and  the  (juantity  to  be  stored  in  any  one 
place,  and  of  sale  within  th(^ir  respective  towns  and  cities,  of 
the  said  articles,  their  products,  compounds  antl  components 
and  other  like  explosive  substances,  notwithstanding  any  j)ro- 
visions  hereinbefore  contained,  and  may  inflict  fines  and  pen- 
alties for  the  violation  of  such  ordinances,  not  exceeding,  for 
any  one  offense,  two  hundred  dollars  fine  and  six  months  im- 
prisonment. Whenever  a  vacancy  shall  occur  in  the  office  of 
inspector  of  petroleum  oil,  kerosene  and  coal  oil,  the  same  shall 
be  filled,  as  soon  as  may  be,  for  the  remainder  of  the  year,  by 
the  town  council  of  any  town  or  the  city  council  of  any  city, 
by  a  new  election.     Id.  ch.  144,  sec.  9. 


Note.  See  Id.  chapter  279,  concerning  offenses  against  private  property. 
Sections  2,  8  and  9  pertain  to  the  burning,  breaking  and  entering  warehouses 
and  the  penalties  for  so  doing. 


Tl2  RHODE    ISLAND    DECISIONS^ 

DECISIONS  AFFECTING  WAREHOUSEMEN. 

A. 

Bailment — Reasonably  safe  building. 

Plaintiffs  stored  carriages  in  defendants  barn  and  paid  storage 
therefor.  The  carriages  were  injured  by  the  falling  of  the  roof 
of  the  barn,  due  to  its  being  overloaded  with  snow.  Held  that 
defendants  were  bound  to  furnish  a  building  which  was  reason- 
ably safe  for  such  storage,  and  were  liable  if  it  proved  to  be 
unsafe,  unless  the  defect  was  one  they  did  not  know  of,  and 
could  not  have  discovered  by  the  use  of  ordinary  care.  Moulton 
&  Remington  v.  Phillips  &  Sheldon,  10  R.  I.  218. 

H. 

Storage  charges — Storing  merchandise  for  railway  company 
When  company  not  liable  for  charges. 

A  common  carrier  stored  in  a  warehouse  merchandise  at  dif- 
ferent times,  the  consignees  of  which  either  could  not  be  found 
or  refused  to  receive  the  goods.  The  warehouseman  paid  the 
freight  charges  and  gave  non-negotiable  receipts  which  set  forth 
in  most  of  the  instances,  the  receipt  of  the  goods  from  the  car- 
rier, the  name  of  the  consignee  when  marked  on  the  goods,  and 
the  amount  of  freight  charges  paid;  in  a  few  instances  the  re- 
ceipt of  the  goods  from  the  carrier  on  account  of  the  consignee; 
and  in  one  or  two  instances  the  receipt  of  the  goods  from  con- 
signee or  owner.  Held  that  the  non-negotiability  of  the  re- 
ceipts and  the  recital  in  them  that  the  goods  were  received  from 
the  carrier  did  not  render  the  carrier  liable  as  a  matter  of  law 
for  the  storage  charges;  held  further  that  the  terms  of  the  re- 
ceipts and  the  actions  of  the  parties  showed  their  understand- 
ing to  be  that  the  warehouseman  received  the  goods  as  bailee 
for  the  owners  and  consequently  the  carrier  was  not  liable  for 
the  storage  charges  due  thereon.  Providence  Warehouse  Co.  v. 
Providence  &  W.  R.  R.  Co.,  19  R.  I.  423. 

N. 
Negligence — Definition. 

Legally  speaking,  negligence  is  the  want  of  that  care  which 


RHODK    ISLAM).  7  1  ;5 

the  law  requires  us  to  exercise.— which  if  cxiictsasa  duly.  Tliis 
care  may  be  due  to  one  iii(hvi(Ui;d  and  not  ti.  another,  and  tliere- 
fore  negUgence  in  fact  is  not  always  neghgencc  in  law,  for  un- 
less a  party  can  show  that  some  duty  to  him  is  violated,  Ik; 
shows  no  legal  negligence.  Tower  v.  Providence  d*  W.  H.  U.  Co., 
2  R.  I.  404;  Blyth  v.  Topham,  1  Cro.  .1.  158. 

0. 

Damages — Measure  of. 

The  value  of  goods,  converted  by  a  warehou.seman,  at  lh(^ 
time  of  the  conversion  is  the  measure  of  damages.  Fifth  \nt. 
Bank  v.  Providence  Warehouse  Co.,  17  R.  I.  112. 

^• 

Warehouse  receipts — Liability  when  goods  delivered  unthmit  re- 
turn of — Demand. 

A.  procured  a  loan  from  the  F.  Bank,  giving  as  collateral 
security  a  warehouse  receipt  as  follows:  "September  2S,  ISSS. 
Received  on  storage  of  A.  &  Co.,  subject  to  the  order  of  the 
F.  Bank,  three  hundred  and  ninety  cases  of  eggs.  To  be  deliv- 
ered according  to  the  indorsement  hereon,  but  only  on  the  sur- 
render and  cancellation  of  this  receipt,  and  on  jiayment  of  the 
charges  payable  thereon."  Across  the  face  of  the  receipt  was 
the  word  "Negotiable."  The  cases  bore  distinguishing  marks. 
On  November  1,  1888,  the  warehouseman  delivered  the.>^'  c:Lses 
to  A.  On  March  11,  1889,  the  F.  Bank  brought  a^sump.fil 
against  the  warehouseman  for  the  value  of  the  eggs,  as  A.  had 
made  default  in  the  payment  of  his  note.  Held  that  the  F. 
Bank  was  entitled  to  call  for  the  identical  eases  stored,  further 
that  the  warehouseman  by  his  delivery  to  A.  had  violated  his 
duty  as  bailee,  and  that  he  was  not  entitled  to  deliver  to  the 
F.  Bank  any  other  cases  than  those  described  in  the  ware- 
house receipt.  Further  held  that  by  the  delivery  of  the  goods 
to  A.  a  conversion  thereof  was  shown  and  that  the  bank  could 
maintain  assuriipsit  without  proof  of  demand.  Fifth  Xai.  Bank 
v.  Providence  Warehouse  Co.,  17  R.  I.  112. 

Same — Construction  of  clause  therein  limiting  liability. 

The  receipt  giAen  by  an  express  company  as  common  carrier 


714  RHODK    ISLAXn    DECISIONS. 

for  a  package  received  by  it  for  transportation  limited  the  lia- 
bility of  the  company  to  fifty  dollars,  ''at  which  the  article 
forwarded  is  hereby  ^'alued  miless  otherwise  expressed."  The 
package  was  lost  by  the  negligence  of  the  express  company. 
Held  that  the  receipt  was  a  \-alid  contract  between  the  shipper 
and  the  carrier,  and  that  fifty  dollars  was  the  limit  of  the  car- 
riers' liability  in  the  absence  of  a  declaration  in  the  receipt  that 
the  article  was  of  higher  value.  Ballou  v.  Earle  &  Prew  Express 
Co.,  17  R.  I.  441. 


SOUTH    CAKOLLNA.  71.;; 


CHAPTER  XL. 
SOUTH  CAROLINA. 

LAWS   PERTAINING   TO   WAREHOUSEMEN. 

Public  warehonsemen  : 

Any  person  engaged  in  the  business  of  a  warchousenian,  or 
any  corporation  organized  under  tlie  laws  of  this  state  and 
whose  charter  authorizes  them  to  engage  in  the  business  of  a 
warehouseman  within  this  state,  may  become  a  j)ubhc  ware- 
houseman and  authorized  to  keep  and  maintain  pubhc  ware- 
houses for  the  storage  of  cotton,  goods,  wares,  and  other  mer- 
chandise as  hereinafter  prescribed,  and  upon  giving  the  bond 
hereinafter  required.     Code  of  South  Carolina,  1902,  sec.  1712. 

To  give  boud : 

Every  person  or  corporation  so  authorized  under  the  pre- 
ceding section  to  become  a  public  warehouseman  shall  give 
bond,  to  an  amount  based  on  the  estimated  value  saiil  ware- 
houseman will  provide  storage  for,  to  the  clerk  of  the  court  of 
common  pleas  of  the  county  wherein  is  situated  the  warehouse 
of  said  public  warehouseman,  with  sufficient  sureties,  to  be  ap- 
proved by  the  said  clerk  of  court,  for  the  faithful  |)erformanee 
of  the  duties  of  a  public  warehouseman.     Id.  sec.  1713. 

Liability  on  bond : 

Whenever  such  warehouseman  fails  to  perform  his  duty,  or 
violates  any  of  the  provisions  of  this  chapter,  any  person  in- 
jured by  such  failure  or  violation  may  bring  an  action  in  his 
name,  and  to  his  own  use,  in  any  court  of  competent  jurisdic- 
tion, on  the  bond  of  said  warehouseman;  and  in  ea.^e  he  shall 
fail  in  said  action  he  shall  be  liable  to  the  defendant  for  any 
costs  which  the  defendant  may  recover  in  the  action.  I  J. 
sec.  1714. 


716  SOUTH    CAROLINA   LAWS. 

When  shall  insure  property  left  in  warehouse — Receipt 
for  goods  : 

Every  such  warehouseman  shall,  when  requested  thereto,  in 
writing,  by  a  party  placing  property  with  him,  or  it,  on  storage, 
cause  such  property  to  be  insured  for  whom  it  may  concern. 
Every  such  warehouseman  shall,  except  as  hereinafter  pro- 
vided, give  to  each  person  depositing  property  with  him  for 
storage  a  receipt  therefor,  which  shall  be  negotiable  in  form, 
and  shall  describe  the  property,  distinctly  stating  the  brand  or 
distinguishing  marks  upon  it,  and  if  such  property  is  grain  the 
quantity  and  inspected  grade  thereof.  The  receipt  shall  also 
state  the  rate  of  charges  for  storing  the  property,  and  amount 
and  rate  of  insurance  thereon,  and  also  the  amount  of  the  bond 
given  to  the  clerk  of  the  court  as  hereinabove  provided:  Pro- 
vided, however,  That  every  such  warehouseman  shall,  upon  re- 
quest of  any  person  depositing  property  with  him  for  storage, 
give  to  such  person  his  non-negotiable  receipt  therefor,  which 
receipt  shall  have  the  words  ''non-negotiable"  plainly  written, 
printed  or  stamped  on  the  face  thereof.     Id.  sec.  1715. 

No  warehouse  or  other  receipt  for  property  to  he  given 
unless  actually  received  : 

No  warehouseman,  wharfinger,  public  or  private  inspector  or 
custodian  of  property,  or  other  person,  shall  issue  any  receipt, 
acceptance  of  an  order  or  other  voucher  for  or  upon  any  goods, 
wares,  merchandise,  provisions,  grain,  flour  or  other  produce 
or  commodity  to  any  person  or  persons  purporting  to  be  the 
owner  or  owners  thereof,  or  entitled  or  claiming  to  receive  the 
same,  unless  such  goods,  wares,  merchandise,  provisions,  grain, 
flour  or  other  commodity  shall  have  been  actually  received  into 
the  store  or  upon  the  premises  of  such  warehouseman,  wharfin- 
ger, inspector,  custodian  or  other  person,  and  shall  be  in  store 
or  on  the  said  premises  as  aforesaid  and  under  his  control  at 
the  time  of  issuing  such  receipt,  acceptance  or  voucher.  Id. 
sec.  1716. 

No  such  receii)t  to  be  issued  as  security  unless  goods  are  in 
custody : 

No  warehouseman,  wharfinger  or  other  person  shall  issue  any 


SOUTH    CAltnl.lNA.  717 

receipt  or  other  voucher  upon  any  ^^oods,  wares,  nicrchaiHlisc, 
grain,  flour  or  other  prochicc  or  connncxlily  to  any  jxtsou  or 
persons  as  security  for  any  money  loancil  or  other  indchtcl- 
ness,  unless  such  goods,  wares,  nicrchandisc,  grain  or  olhur 
produce  or  commodity  shall  be  at  tiic  time  of  issuing  such  rtv 
ceipt  in  the  custody  of  such  warehouseman,  whai-fingcr  or  otluT 
person,  and  shall  be  in  store  or  upon  the  premises  and  under  his 
control  at  the  time  of  issuing  such  receipt  or  other  voucher  us 
aforesaid.     Id.  sec.  1717. 

No  duplicate  receipt  to  be  issued  uuless  so  marked  : 

No  warehouseman,  wharfinger,  inspector,  custodian  or  other 
person  shall  issue  any  second  or  duplicate  receipt,  accejitance 
or  other  voucher  for  or  upon  any  goods,  wares,  merehandise, 
provisions,  grain,  flour  or  other  produce  or  commodity  while 
any  former  receipt,  acceptance  or  voucher  for  or  u|)on  any  such 
goods,  wares,  merchandise,  provisions,  flour,  grain  or  other 
produce  or  commodity  as  aforesaid,  or  any  part  thereof,  shall 
be  outstanding  and  uncancelled,  without  writing  in  ink  across 
the  face  of  the  same  "  Duplicate."     Id.  sec.  17LS. 

No  such  goods  to  be  removed  without  assent  of  person 
holdiug  receipt : 

No  warehouseman,  wharfinger,  or  other  person  shall  sell  or 
incumber,  ship,  transfer  or  in  any  manner  remove  beyond  his 
immediate  control  any  goods,  wares,  merchandise,  grain,  flour 
or  other  produce  or  commodity  for  which  a  receipt  .shall  have 
been  given  by  him  as  aforesaid,  "whether  received  for  st(M-ing. 
shipping,  grinding,  manufacturing  or  other  purposes,  without 
the  written  assent  of  the  person  or  persons  holding  such  receipt. 
Id.  sec.  1719. 

Receipts  transferable — Rights  of  transferee— Receipt  to 
be  delivered  upon  surrender  of  goods — Not  neerotiable  : 

Warehouse  receipts  given  for  any  goods,  wares.  merehandi.<!e, 
cotton,  grain,  flour,  produce  or  oth(M-  commodity  and  chattels 
stored  or  deposited  with  any  warehouseman,  wharfinger  or  other 
person,  may  be  transferred  by  indorsement  and  delivery  thereof, 
to  the  purchaser  or  pledgee,  signed  by  the  jierson  to  whom  the 
receipt  was  originally  given,  or  by  an  indorsee  of  such  receipt; 


718  SOUTH    CAROLINA    LAWS. 

and  any  person  to  \vhom  the  same  may  be  so  transferred  shall 
be  deemed  and  taken  to  be  the  owner  of  the  goods,  wares  and 
merchandise  therein  specified,  so  far  as  to  give  validity  to  any 
})ledge,  lien  or  transfer  made  or  created  by  such  person  or  per- 
sons, but  no  property  shall  be  delivered  except  on  surrender 
and  cancellation  of  said  original  receipt  or  the  indorsement  of 
such  delivery  thereon  in  case  of  partial  delivery.  The  assign- 
ment of  warehouse  receipts  which  shall  have  the  words  "Not 
negotiable"  plainly  written  or  stamped  on  the  face  thereof  shall 
not  be  effective  until  recorded  on  the  books  of  the  warehouse- 
man issuing  them.     Id.  sec.  1720. 

As  to  goods  replevied  or  removed  by  law : 

So  much  of  the  preceding  sections  1719  and  1720  as  forbids 
the  delivery  of  property  except  on  surrender  and  cancellation 
of  the  original  receipt  or  the  indorsement  of  such  delivery  there- 
on, in  the  case  of  partial  delivery,  shall  not  apply  to  property 
replevied  or  removed  by  operation  of  law.     Id.  sec.  1721. 

Oraiu : 

When  grain  or  other  property  is  stored  in  public  warehouses 
in  such  a  manner  that  different  lots  or  parcels  are  mixed  to- 
gether, so  that  the  identity  thereof  cannot  be  accurately  pre- 
served, the  warehouseman's  receipt  for  any  portion  of  such 
grain  or  property  shall  be  deemed  a  valid  title  to  so  much 
thereof  as  is  designated  in  said  receipt,  without  regard  to  any 
separation  or  identification.     Id.  sec.  1722. 

Shall  keep  a  book  of  eutry  : 

Every  such  warehouseman  shall  keep  a  book  in  which  shall 
be  entered  an  account  of  all  his  transactions  relating  to  ware- 
housing, storing  and  insuring  cotton,  goods,  wares  and  mer- 
chandise, and  to  the  issuing  of  receipts  therefor,  which  books 
shall  be  open  to  the  inspection  of  any  person  actually  inter- 
ested in  the  property  to  which  such  entries  relate.     Id.  sec.  1723. 

Action  for  damages : 

All  and  every  person  or  persons  aggrieved  by  the  violation 
of  any  of  the  provisions  of  section  1716  to  1721  may  have 
and  maintain  an  action  at  law  against  the  person  or  persons 


SOUTH    CAIIOLINA.  719 

violating  any  of  the  piovi.siuu.s  tlicivijl  to  icccjvlt  all  daiiuiguji, 
immediate  or  consequential,  which  he  or  tliey  may  iuive  suh- 
tained  by  reason  of  any  such  x'iuhition  a.s  aforesaid,  before  any 
court  of  competent  jurisdiction,  whether  sudi  person  shall  iiave 
been  convicted  as  hereinbefore  mentioned  or  not.     Id.  sec.  1724. 

Wheu  he  may  sell  property  left  with  liini  : 

Every  public  warehouseman  who  shall  have  in  liis  posses- 
sion any  property  by  virtue  of  any  agreement  (jr  warehoiLs<- 
receipt  for  the  same,  storage  of  the  same,  on  wliicli  a  chiim  for 
storage  is  at  least  one  year  overdue,  may  jjroceed  to  sell  the 
same  at  public  auction,  and  out  of  the  proceeds  may  return  all 
charges  for  storage  of  such  goods,  wares  and  merchandise,  and 
any  advances  that  may  have  been  made  thereon  by  him  or  them, 
and  the  expenses  of  advertising  and  sale  thereof.  Hut  no  .sale 
shall  be  made  until  after  the  giving  of  printed  or  wiitten  notice 
of  such  sale  to  the  person  or  persons  in  who.se  name  such  goods, 
wares  and  merchandise  were  stored,  reciuiring  him  or  them, 
naming  them,  to  pay  the  arrears  or  amount  due  for  such  stor- 
age, and  in  case  of  default  in  so  doing  the  gooils,  wares  and 
merchandise  may  be  sold  to  pay  the  same  at  a  time  and  place 
to  be  specified  in  such  notice.     Id.  sec.  1725. 

Notice  of  sale,  how  served : 

The  notice  recjuired  in  the  last  preceding  section  shall  be 
served  by  delivering  it  to  the  person  or  persons  in  whose  name 
such  goods,  wares  and  merchandise  were  stored,  or  by  leaving 
it  at  his  usual  place  of  abode,  if  within  this  state,  at  least  thirty 
days  before  the  time  of  such  sale,  and  a  return  of  the  .<?prvice 
shall  be  made  by  some  officer  authorized  to  serve  civil  process, 
or  by  some  other  person,  with  an  affida\it  of  the  truth  of  the 
return.  If  the  party  storing  such  goods  cannot  with  rea.son- 
able  diligence  be  found  within  this  state,  then  such  notice  .shall 
be  given  by  publication  once  in  each  week  for  two  succes-sive 
weeks,  the  last  publication  to  be  at  least  ten  days  before  the 
time  of  such  sale,  in  a  newspaper  published  in  the  city  or  town 
where  such  warehouse  is  located;  or  if  there  be  no  such  paper, 
in  one  of  the  principal  newspapers  published  in  the  county 
in  which  said  city  or  town  is  located.     In  the  event  that  the 


720  SOUTH    CAROLINA    LAWS. 

party  storing  such  goods  shall  have  parted  with  the  same,  and 
the  purchaser  shall  have  notified  the  warehousemen,  with  his 
address,  such  notice  shall  be  given  to  such  person  in  lieu  of  the 
person  storing  the  goods.     Id.  sec.  1726. 

Surplus  after  sale : 

Such  warehousemen  shall  make  an  entry,  in  a  book  kept  for 
that  pm-pose,  of  the  balance  or  surplus,  of  proceeds  of  sale,  if 
any,  and  such  balance  or  surplus,  if  any,  shall  be  paid  over  to 
such  person  or  persons  entitled  thereto  on  demand.  If  such 
balance  or  surplus  is  not  called  for  or  claimed  by  such  party  or 
owner  of  said  property  within  six  months  after  such  sale,  such 
balance  or  surplus  shall  be  paid  by  said  warehouseman  to  the 
clerk  of  the  court  of  the  county  in  which  said  warehouse  is  lo- 
cated, who  shall  pay  the  same  to  the  parties  entitled  thereto, 
if  called  for  or  claimed  by  the  original  owner  within  five  years 
after  the  sale  thereof,  and  such  warehouseman  shall  at  the  same 
time  file  with  said  clerk  an  affidavit  in  which  shall  be  stated  the 
name  and  place  of  residence,  so  far  as  the  same  are  known.  Id. 
sec.  1727. 

Perishable  property,  how  disposed  of  : 

Whenever  a  public  warehouseman  has  in  his  possession  any 
property  which  is  of  a  perishable  nature,  or  will  deteriorate 
greatly  in  value  by  keeping,  or  upon  which  the  charges  for 
storage  will  be  likely  to  exceed  the  value  thereof,  or  which  by 
its  odor,  leakage,  inflammability,  or  explosive  nature,  is  likely 
to  injure  other  goods,  such  property  having  been  stored  upon 
non-negotiable  receipt,  and  when  said  warehouseman  has  noti- 
fied the  person  in  whose  name  the  property  was  received  to 
remove  said  property,  but  such  person  has  refused  or  omitted 
to  receive  and  take  away  such  proj^erty  and  to  pay  the  storage 
and  proper  charges  thereon,  said  public  warehouseman  may  in 
the  exercise  of  a  reasonable  discretion  sell  the  same  at  public 
or  private  sale,  without  advertising,  and  the  proceeds,  if  there 
are  any  proceeds  after  deducting  the  amount  of  said  storage 
and  charges  and  expenses  of  sale,  shall  be  paid  or  credited  to 
the  person  in  whose  name  the  property  was  stored;  and  if  said 
person  cannot  be  found,  on  reasonable  inquiry,  the  sale  may  be 


SOUTH    (JAUoLINA.  721 

made  without  any  notice,  and  the  i)r(.tv('ds  of  sueh  sale,  after 
dcduetin^r  the  amount  of  storage,  expenses  of  sale,  and  otiier 
proper  charges,  shall  be  paid  to  the  clerk  of  the  court  of  the 
county  wherein  said  warehouse  is  situated,  who  siiali  pay  tiu! 
same  to  the  person  entitled  thereto  if  called  for  or  clainK-d  hy 
the  rightful  owner  within  one  year  of  the  icccij)t  thereof  hy 
said  clerk.     Id.  sec.  1728. 

Same  : 

Whenever  a  pul)lic  warehouseman,  under  the  provisions  of 
the  preceding  section,  has  made  a  reasonable  effort  to  sell 
perishable  and  worthless  property,  and  has  been  unable  to  do 
so,  because  of  its  being  of  little  or  no  value,  he  may  then  proceed 
to  dispose  of  such  property  in  any  lawful  manner,  and  lie  siiall 
not  be  liable  in  any  way  for  property  so  disposed  of.  Id.  sec. 
1729. 

Liability  for  storaj^e  : 

Whenever  a  public  warehouseman,  under  the  provisions  of 
the  two  preceding  sections,  has  sold  or  otherwise  disposed  of 
property  and  the  proceeds  of  such  sale  or  disposition  have  not 
equalled  the  amount  necessary  to  pay  the  storage  charges,  ex- 
penses of  sale  and  other  charges  against  said  property,  then 
the  person  in  whose  name  said  property  was  stored  shall  be  lia- 
ble to  said  public  warehouseman  for  an  amount  which,  added 
to  the  proceeds  of  such  sale,  will  be  sufficient  to  pay  all  of  the 
proper  charges  upon  said  property;  or  in  case  such  property 
was  valueless  and  there  were  no  proceeds  realized  from  its  dis- 
position, the  person  in  whose  name  said  property  was  stored 
shall  be  liable  to  said  public  warehouseman  foi-  all  jiroper  charges 
against  said  property.     Id.  sec.  1730. 

Maximum  rates  for  selling  leaf  tobacco  fixed— BilN  of 
same  to  be  furiiislied  the  seller : 

The  charges  and  expenses  of  handling  and  selling  leaf  toliacco 
upon  the  floor  of  tobacco  warehouses  in  this  state  shall  not  ex- 
ceed the  following  schedule  of  prices,  to  wit:  For  auction  feos. 
fifteen  (15)  cents  on  all  piles  of  one  hundred  poimds  or  less-,  and 
twenty-five  (25)  cents  on  all  piles  of  over  one  hundred  pminds 
46 


722  SOUTH    CAIKJLINA    LAWS. 

and  less  than  two  hundivd  pounds;  tifty  (50)  cents  per  pile  for 
piles  of  two  hundred  pounds  or  over.  For  weighing  and  hand- 
ling ten  (10)  cents  per  pile  for  all  piles  of  less  than  one  hundred 
pounds;  for  all  piles  of  over  one  hundred  pounds,  at  the  rate  of 
ten  (10)  cents  per  hundred  pounds;  for  commission  on  the  gross 
sales  of  leaf  tobacco  in  said  warehouses,  not  to  exceed  two  and 
one  half  per  centum.  The  proprietor  of  each  and  every  ware- 
house shall  render  to  each  seller  of  tobacco  at  his  warehouse  a 
bill,  plainly  stating  the  amount  charged  for  weighing  and  hand- 
ling, the  amounts  charged  for  auction  fees  and  the  commission 
charged  on  such  sale;  and  it  shall  be  unlawful  for  any  other 
charges  or  fees  exceeding  those  herein  named  to  be  made  or 
accepted:  Provided,  That  the  provisions  of  this  section  shall  not 
apply  to  the  counties  of  Horry,  Sumter,  Pickins,  and  Chester- 
field.    Id.  sec.  1731. 

Railroad  commission  to  fix  storage  diarges  on  freight : 

Power  is  hereby  confei'red  on  the  railroad  commission  of 
South  Carolina,  and  they  are  required  to  fix  and  prescribe  a 
schedule  of  maximum  rates  and  charges  for  storage  of  freight 
made  and  charged  by  railroad  companies  doing  business  in  this 
state,  and  to  fix  at  what  time,  after  the  reception  of  freight  at 
place  of  destination  such  charges  of  storage  shall  begin,  with 
power  to  vary  the  same  according  to  the  value  and  character 
of  the  freight  stored,  the  nature  of  the  place  of  destination,  and 
residence  of  consignee,  and  such  othei-  facts  as  in  their  judg- 
ment should  be  considered  in  fixing  the  same. 

All  the  provisions  of  the  act  creating  said  railroad  com- 
mission, and  acts  amendatory  thereof,  prescribing  the  proce- 
dure of  said  commission  in  fixing  freight  and  passenger  traffics, 
and  hearing  complaints  of  carrier  and  shipper,  and  of  alter- 
ing and  amending  said  tariffs,  shall  apply  to  the  subject  of 
fixing  and  amending  rates  and  charges  for  storage,  as  afore- 
said.    Id.  sec.  1732. 

Discrimination  and  excessive  charges  prohibited  : 

No  railroad  company  shall  make  or  retain,  directly  or  indi- 
rectly, any  charge  for  storage  or  freight  greater  than  that  fixed 
by  the  commission  for  each  particulai"  storage,  nor  shall  they 


SOUTH    CA  KOI. ISA.  723 

discriminate  directly  or  iiidircctly  hy  mcnis  ..f  rvhatc,  or  any 
device  in  such  charges,  between  |)('rs(jns.     /</.  sec.  1733. 

Penalty  for  overchar^'e  <»f  sforaj^e  : 

If  any  raihoad  conipnny  shall  viohite  the  provi.sions  of  thi.s 
chapter,  either  by  exceeding  the  rates  of  storage  prescribed,  or 
by  discriminating,  as  aforesaid,  the  person  or  persons  so  i)aying 
such  overcharge,  or  subjected  to  such  discrimination,  sliall  liave 
the  right  to  sue  for  the  same  in  any  court  of  this  state  having 
jurisdiction  of  the  claim,  and  shall  have  all  the  remedies,  and 
be  entitled  to  recover  the  same  penalties  and  measure  of  dam- 
ages as  is  prescribed  in  the  case  of  overcharge  of  freight  rates, 
upon  making  like  demand  as  is  prescribed  in  such  case,  and  after 
like  failure  to  pay  the  same.     Id.  sec.  1734. 

Common  carriers  may  sell  property  unclaimed  for  six 
months  : 

Every  railroad  corporation,  express  company,  and  the  pro- 
prietors of  every  steamboat  engaged  in  the  transportation  of 
passengers  and  freight,  or  either,  which  shall  have  had  un- 
claimed freight  or  baggage  not  perishable  in  its  possession  f(»r 
the  period  of  six  months  may  proceed  and  .sell  tlie  sanie  at 
public  auction,  after  giving  notice  to  that  effect  in  one  or  more 
newspapers  published  in  the  state  or  at  the  place  where  such 
goods  are  to  be  sold  once  a  week  for  not  le.^s  than  four  weeks, 
and  shall  also  keep  a  notice  of  such  sale  posted  for  the  same  time 
in  a  conspicuous  place  in  the  principal  office  of  said  company. 
Id.  sec.  1735. 

Contents  of  advertisement : 

Said  notice  shall  contain,  as  near  as  practicable,  a  description 
of  such  freight  or  baggage,  the  place  and  time  when  and  where 
left,  together  with  the  na.me  and  residence  of  the  owner  of  the 
freight  or  baggage,  or  person  to  whom  it  is  consigned,  if  the 
same  be  known.     Id.  sec.  1736. 

Disposition  of  moneys  received  : 

All  moneys  raised  fi'om  the  sale  of  freight  or  baggage  as 
aforesaid,  after  deducting  therefrom  charges  and  expenses  for 
the  transportation,  storage,  advertising,  conunissions  for  sell- 


724  SOUTH    CAROLINA    LAWS. 

ing  the  property,  and  any  amount  previously  paid  for  advances 
on  such  freight  and  baggage,  shall  be  paid  by  the  company  to 
the  persons  entitled  to  receive  the  same.     Id.  sec.  1737. 

Books  of  sale  to  be  kej)!  for  inspection  : 

The  said  company  shall  keej)  books  of  record  of  all  such  sales 
as  aforesaid,  containing  copies  of  such  notices,  proofs  of  ad- 
vertisements and  posting,  affidavit  of  sale,  with  the  amount  for 
which  each  parcel  was  sold,  the  total  amount  of  charges  against 
such  parcel,  and  the  amount  held  in  trust  for  the  owner,  which 
books  shall  be  kept  open  for  inspection  by  claimants,  at  the 
principal  office  of  said  company,  and  at  the  office  the  sale  was 
made.     Id.  sec.  1738. 

When  and  by  whom  may  be  sold — Surplus  deposited  with 
clerk  of  court  : 

It  shall  be  lawful  for  any  mechanic,  in  this  state,  when  prop- 
erty may  be  left  in  his  shop  for  repair,  to  sell  the  same  at  public 
outcry,  to  the  highest  bidder,  after  the  expiration  of  one  year 
from  the  time  such  property  shall  have  been  repaired;  and  the 
same  shall  be  sold  by  any  magistrate  of  the  county  in  which  the 
work  was  done:  Provided,  That  the  said  magistrate  shall,  before 
selling  such  property,  advertise  the  same,  for  at  least  ten  days, 
by  posting  a  notice  in  three  of  the  most  conspicuous  places  in 
his  township.  And  he  shall,  after  deducting  all  proper  costs 
and  commissions,  pay  to  the  claimant  the  money  due  to  him, 
taking  his  receipt  for  the  same ;  after  which  he  shall  deposit  the 
said  receipt,  as  well  as  the  terms  of  costs  and  commissions,  with 
the  remainder  of  money  or  proceeds  of  the  sale,  in  the  office  of 
the  clerk  of  the  court,  subject  to  the  order  of  the  owner  thereof, 
or  his  legal  representatives.     Id.  sec.  1739. 

Commissions  on  such  sfiles  : 

Th(!  magistrate  who  shall  sell  such  property  shall  be  entitled 
to  receive  the  same  commissions  as  are  now  allowed  by  law  for 
the  sale  of  personal  property  by  constables.     Id.  sec.  1740. 

No  deduction  in  tare,  etc.,  allowed  : 

The  custom  of  making  a  deduction  from  the  actual  weight  of 
bales  of  unmanufactured  cotton,  as  an  allowance  for  tare,  break- 


SOUTH  (  .\i;i»i,iNA.  T2;> 

age,  or  draft  thereon,  is  aholisluMl ;  ainl  .ill  contracts  mailr  in 
relation  to  cotton  shall  \)v  (IccukmI  and  taken  as  ivjcrrinf^  to  the 
true  and  actual  weight  theieof,  without  deduction  for  any  such 
tare  or  draft.     General  Statutes,  South  Carolina,  1NS2.  sec.  1 1'J"). 

Rates  of  storage  : 

The  rates  of  storage  of  cotton  shall  not  exceed  twelve  and 
one  half  cents  per  week  for  each  bale  of  cotton;  the  charges  for 
weighing  cotton  shall  not  exceed  ten  cents  for  each  hale;  ami 
any  person  violating  the  provisions  of  this  section,  or  either 
of  them,  shall  forfeit  to  the  owner  of  the  cotton  ten  dollars  for 
each  offense,  which  may  be  recovered  by  him  in  any  court  of 
competent  jurisdiction  in  this  state.     Id.  sec.  1196. 

Above  section  construed— Being  penal  must  be  strictly  in- 
terpreted : 

The  defendant,  a  factor,  was  sued  by  his  principal  for  having 
charged  him  wdth  a  greater  amount  for  storage  tliaii  the  rate 
allowed  by  the  above  statute,  and  in  the  suit  demanded  the 
penalty  therein  provided  for.  It  appeared  that  the  defendant 
had  not,  in  fact,  stored  the  same  and  that  he  was  in  no  .^ense  a 
warehouseman.  The  property  in  question  had  been  actually 
stored  in  a  warehouse  and  the  defendant  had  actually  paid 
rates  greater  than  allowed  by  the  above  statute  for  such  storage. 
It  was  held  that  this  statute,  being  penal,  imist  be  strictly  con- 
strued and  so  construing  it,  it  was  perfectly  manifest  that  the 
act  prohibited  by  the  statute  is  making  of  a  charge  for  storage 
in  excess  of  the  rate  there  provided,  not  the  pciyinfi  of  a  charg(» 
in  excess  of  the  rate.  Therefore,  judgment  given  for  defend- 
ant below  was  affirmed  on  appeal.  Holman  v.  Frost  S:  Co.,  26 
S.  C.  290. 


726  SOUTH    CAKOLINA    DECISIONS. 


DECISIONS  AFFECTING  WAREHOUSEMEN. 

A. 

Bailment — When  property  liable  for  debt  of  bailee — Rvle  stated. 

The  rule  which  renders  the  propert}^  of  the  true  owner  Hable 
for  the  debt  of  the  bailee,  or  person  in  possession,  is  applicable 
only  where  the  original  credit  was  based  on  the  property;  and 
the  debt  must  not  be  of  doubtful  beginning,  but  the  plaintiff 
must  show  it  to  have  been  contracted  subsequent  to  the  pos- 
session of  his  debtor.     Ford  v.  Aiken,  1  Strob.  93. 

Sanie — Statute  of  limitations — When  it  begins  to  run. 

Where  goods  held  for  safe-keeping  are  destroyed,  the  statute 
of  limitations  begins  to  run  from  the  time  of  the  loss,  or,  at  the 
latest,  from  the  time  the  owner  has  notice  of  the  loss,  and  not 
from  the  time  of  demand.     Cohrs  v.  Fraser,  5  S.  C.  351. 

B. 

Ordinary  diligence — Definition. 

Ordinary  diligence,  in  the  law  of  bailments,  is  a  relative  term, 
and  signifies  that  care  which  men  of  common  prudence  gener- 
ally take  of  like  articles  of  their  own,  at  the  time  and  in  the  place 
where  the  question  arises.  Scott,  Williams  &  Co.  v.  Crews,  2 
S.  C.  522. 

Delivery — To  agent. 

To  charge  a  mandatory  with  an  article  lost,  it  is  not  necessary 
that,  in  every  case,  the  delivery  should  have  been  to  him  indi- 
vidually, or  to  one  expressly  or  specifically  authorized  to  receive 
for  him ;  but  an  agency  to  receive  may  be  implied  in  the  same 
manner  as  such  agency  may  be  implied  in  relation  to  articles 
which  were  to  be  carried  for  hire.  Lloyd  v.  Barden  &  Brooks, 
3  Strob.  343. 

Same — Depositing  in  warehouse — Stoppage  in  transitu. 

The  deposit  of  goods  when  they  have  reached  their  destina- 
tion, in  a  warehouse,  subject  to  the  order  and  control  of  the 
buyer,  is  an  executed  delivery,  as  effectual  to  defeat  the  right  of 


SOUTH    CAROLINA.  727 

stoppage  in  transitu,  as  if  they  had  been  deposited  in  the  ware- 
house of  the  buyer,  and  a  dei)osit,  in  hke  manner,  in  the  ware- 
house of  the  vendor,  <hvests  his  riglit  to  retain  for  the  price 
which  may  be  unpaid.     Frazer  v.  Hilliard  et  at.,  2  Strob.  309. 

Same — When  liability  attaches. 

In  an  action  against  a  railroad  company  for  the  loss  of  goods 
in  transportation,  it  appeared  that  the  goods  had  never  been 
removed  from  the  car.  The  defendant  attempted  to  show  that 
its  liability  was  that  of  a  warehouseman,  and  that  the  transit 
had  ended.  It  was  held  that  there  must  be  an  initial  point  in 
the  matter  of  the  liability  of  warehousemen  and  that  this  initial 
point  was  the  moment  the  storage  begun,  which  was  not  shown 
in  tliis  case.     Hipp  v.  Southern  Ry.  Co.,  50  S.  C.  129. 

Warehouseman — Pleading — Statute  of  limitations — Code — Prac- 
tice. 

In  an  action  against  one  charged  as  a  warehouseman,  to  re- 
cover the  value  of  goods  deposited  for  safe-keeping,  the  answer 
set  up  as  defenses:  (1)  A  denial  of  the  alleged  bailment;  (2)  an 
allegation  that  the  goods  were  destroyed  by  an  irresistible  force, 
and  without  the  fault  of  the  defendant;  and  (3)  a  plea  of  the 
statute  of  limitations.  Held  that  the  statute  of  limitations  was 
properly  pleaded,  and  could  not  be  stricken  out  of  the  answer 
on  the  ground  of  inconsistency.  An  answer  under  the  code 
may  set  forth  as  many  legal  defenses  as  were  allowed  under 
the  former  practice.  A  motion  to  strike  out  a  defense  as  in- 
consistent with  other  defenses  alleged  in  the  answer  should  be 
made  on  notice  and  before  trial,  and  the  practice  prescribed  by 
the  21st  rule  of  the  circuit  courts  might  well  be  followed  in 
such  cases.     Cohrs  v.  Fraser,  5  S.  C.  351. 

H. 

Stcyrage  charges — Implied  contract  to  pay. 

Where  one  allowed  a  warehouseman  to  receive  and  store  his 
goods  it  was  held  that  there  was  an  implied  contract  for  the 
payment  of  reasonable  storage  charges  therefor.  Devereux  v. 
Fleming,  53  Fed.  Rep.  401,  distinguishing  Somes  v.  Shipping 
Co.,  8  H.  L.  Cas.  338. 


728  SOUTH   CAROLINA   DECISIONS. 

Lien  for  storage  charges — General  balance — Must  he  under  one 
transaction  hut  not  at  one  time  necessarily — Charges  continue  after 
warehouseman  holding  under  his  lien. 

A  warehouseman's  lien  upon  goods  stored  is  specific  and  not 
general  but  if  the  goods  were  received  under  one  transaction 
and  form  a  part  of  the  same  bailment,  he  may  deliver  a  part 
of  the  goods,  and  retain  the  residue  for  the  price  chargeable 
on  all  the  goods  received,  provided  the  ownership  of  the  whole 
is  in  one  person.  This  phrase  ''under  one  transaction"  does 
not  mean  at  the  same  time,  but  pursuant  to  one  transaction. 
A  contention  that  a  w^arehouseman  was  not  entitled  to  his 
charges  from  the  time  he  first  asserted  his  lien  on  the  goods  up 
to  the  date  of  the  judgment  on  the  ground  that  during  such 
period  he  held  the  goods  for  his  own  benefit,  could  not  be  sus- 
tained. The  right  to  hold  the  goods  until  the  charges  are  paid 
under  the  original  contract  of  storage  continues  and  the  origi- 
nal contract  does  not  cease  until  its  charges  are  paid,  remitted, 
or  tendered.  Devereux  v.  Fleming,  53  Fed.  Rep.  401,  distin- 
guishing. Somes  V.  Shipping  Co.,  8  H.  L.  Cas.  338. 

L. 

Trover — Bailee  may  maintain — When  against  owner. 

The  bailee  of  goods  may  maintain  trover  or  trespass  against 
anyone  but  the  legal  owner;  and  a  bailee  whose  possession  is 
coupled  with  an  interest,  may  maintain  trespass,  even  against 
the  owner,  for  tortiously  taking  the  goods  out  of  his  possession. 
Jones  V.  M'Neil,  2  Bail.  466. 

N. 

Neglect — Proprietor  of  gin. 

The  proprietor  of  a  cotton  machine,  for  cleaning  cotton- wool 
from  its  seed,  who  takes  cotton  to  gin  for  a  reward,  is  answer- 
able as  a  bailee  for  ordinary  neglect.     Foster  v.  Taylor,  2  Brev. 

348. 

P. 

Insurable  interest — Warehousemen  have,  in  stored  cotton  held 
in  various  ways. 

Warehousemen  insured  certain  bales  of  cotton  stored  with 
them  in  their  own  name  on  a  form  of  policy  intended  for  ware- 


SOUTH    ("AROLINA.  729 

houses  containing  the  special  clause  ''cotton  in  bales,  their  own 
or  held  by  them  in  trust,  or  on  commission,  or  on  joint  account 
with  others,  or  sold  but  not  delivered,"  contained  in  their  ware- 
house. After  destruction  by  fire  the  owner  of  the  goods  as 
assignee  of  the  policy  sued  the  insurance  company  thereon.  An 
instruction  by  the  court  to  the  jury  that  the  warehousemen 
had  a  right  to  insure  in  their  own  name  under  the  above  terms 
the  cotton  in  their  warehouse,  that  they  liad  a  right  to  sue  there- 
for in  their  own  name  and  having  such  right  they  could  lawfully 
assign  the  same,  was  held  correct.  Pelzer  Mfg.  Co.  y.  St.  Paul 
Fire  &  M.  Ins.  Co.,  41  Fed.  Rep.  271. 

Same — Right  of  subrogation  prevented  by  conditions  in  lease  of 
insured — Effect  on  policy. 

Where  the  owner  of  goods,  who  was  the  assignee  of  the  fire 
insurance  policy  taken  out  thereon  by  the  warehouseman,  sues 
on  such  policy  for  the  recovery  of  the  value  of  the  goods  which 
were  destroyed,  it  was  shown  that  the  warehouse  was  con- 
structed on  ground  leased  from  an  adjacent  railroad  company 
and  that  the  lease  contained  a  covenant  that  the  latter  would 
not  be  liable  for  any  damage  or  loss  occasioned  by  its  locomo- 
tives. This  clause  in  the  lease  was  not  made  known  to  the 
insurance  company  at  the  time  of  the  issuance  of  the  policy 
and  the  company  contended  that  as  its  right  of  subrogation 
was  thereby  denied  to  it,  its  policy  was  therefore  void.  At 
trial  the  court  left  to  the  jury  for  its  determination  the  question 
as  to  whether  or  not  it  would  have  made  any  difference  in  the 
risk  if  the  warehouseman  had  stated  this  fact.  The  jury  found 
that  from  custom  in  that  part  of  the  country  it  would  have  made 
no  difference.  It  was  held  on  appeal  that  this  being  the  case 
that  it  would  not  enter  into  or  become  a  part  of  the  contract  of 
insurance.  Pelzer  Mfg.  Co.  v.  St.  Paul  Fire  &  M.  Ins.  Co.,  41 
Fed.  Rep.  271;  Home  Ins.  Co.  v.  Baltimore  Warehouse  Co.,  93 
U.  S.  527. 

R. 

Bills  of  lading — Title  passes  by  delivery  as  against  attaching 
creditor  of  the  vendor. 

Where  a  bank  honored  a  draft  with  a  bill  of  ladmg  attached 


730  SOUTH   CAROLINA    DECISIONS. 

thereto,  it  was  held  the  title  of  the  goods  represented  by  the 
bill  of  lading  passed  to  the  bank  as  against  a  creditor  of  the 
vendor,  who  attached  the  goods  subsequent  to  the  bank's  pos- 
session of  the  bill  of  lading.  Union  Nat.  Bank  v.  Rowan,  23 
S.  C.  339. 


SOUTH    DAKOTA.  731 


CHAPTER  XLI. 
SOUTH  DAKOTA. 

LAWS   PERTAINING   TO   WAREHOUSEMEN. 

Authority  conferred  upon  railroad  eonmiissioners  : 

That  the  duties  imposed  by  the  provisions  of  this  act  and  the 
powers  conferred  therein  devolve  upon  the  board  of  raih'oad 
commissioners.  Grantham's  Annotated  South  Dakota  Stat- 
utes, 1901,  sec.  228. 

Duties  and  powers : 

That  it  shall  be  the  duty  of  the  railroad  commissioners  of  the 
state  of  South  Dakota  to  supervise  the  handling,  inspection, 
weighing,  grading  and  storage  of  grain  and  seeds;  to  establish 
all  necessary  rules  and  regulations  for  the  weighing  and  inspec- 
tion of  grain,  and  for  the  management  of  the  public  warehouses 
of  the  state,  as  far  as  such  rules  and  regulations  may  be  neces- 
sary to  enforce  the  provisions  of  this  act,  or  any  law  of  this  state, 
in  regard  to  the  same ;  to  investigate  all  complaints  of  fraud  or 
oppression  in  the  grain  trade  of  this  state,  and  to  correct  the 
same  as  far  as  it  may  be  in  their  power.     Id.  sec.  229. 

Printing  and  publishing  of  rules  : 

The  rules  and  regulations,  so  established,  shall  be  printed  and 
published  by  said  railroad  commissioners  in  such  manner  as  to 
give  the  greatest  publicity  thereto  and  the  same  shall  be  in  force 
and  effect  until  they  shall  have  been  changed  or  abrogated  by 
said  commissioners  in  a  like  public  manner.     Id.  sec.  230. 

Public  warehouses  : 

That  all  elevators  and  warehouses  in  this  state  wherein  and 
whereat  grain  is  purchased,  received  or  handled  are  hereby  de- 
clared to  be  public  warehouses.     Id.  sec.  231. 

License  : 

That  it  shall  not  be  lawful  for  the  proprietor,  lessee  or  man- 


732  SOUTH    DAKOTA    LAWS. 

ager  of  any  warehouse  or  elevator,  mentioned  in  section  four 
(§  231)  of  this  act,  to  transact  any  business  until  a  license  has  been 
procured  from  the  railroad  commissioners  permitting  such  pro- 
prietor, lessee  or  manager  to  transact  business  as  a  public  ware- 
houseman under  the  laws  of  this  state,  which  license  shall  be 
issued  by  the  railroad  commissioners  upon  a  written  applica- 
tion, which  shall  set  forth  the  location  and  name  and  capacity 
of  such  elevator  or  warehouse  and  the  individual  name  of  each 
person  interested  as  owner  or  principal  in  the  management  of 
the  same ;  or,  if  the  elevator  or  warehouse  be  owned  or  managed 
by  a  corporation,  the  name  of  the  president,  secretary  and 
treasurer  of  such  corporation  shall  be  stated,  and  the  said  license 
shall  give  authority  to  carry  on  and  conduct  the  business  of  a 
pubhc  warehouse,  in  accordance  with  the  laws  of  this  state; 
Provided,  That  it  shall  be  unlawful  for  any  warehouseman,  com- 
pany or  corporation  engaged  in  purchase  and  storage  of  grain, 
subject  to  the  provisions  of  this  act,  to  enter  into  any  contract, 
agreement  or  combination  with  any  other  warehouse,  company 
or  corporation  for  pooling  in  the  purchase  and  storage  of  grain 
by  difTerent  and  competing  warehousemen,  companies  or  cor- 
porations to  divide  between  them  the  aggregate  or  net  proceeds 
of  margins  or  profits  resulting  from  their  said  business  as  ware- 
housemen, or  any  portion  thereof,  and  in  any  case  of  such  con- 
tract, agreement  or  combination  for  such  pooling  of  their  said 
business  as  warehousemen,  each  day  of  its  continuance  shall  be 
deemed  a  separate  offense.     Id.  sec.  232. 

Bond : 

That  the  proprietor,  lessee  or  manager  of  any  warehouse  or 
elevator  in  this  state  in  which  grain  is  stored  for  a  compensa- 
tion, shall  before  receiving  the  license  as  hereinbefore  provided, 
file  with  the  commissioners  granting  the  same  a  bond  to  the 
state  of  South  Dakota,  with  good  and  sufficient  sureties,  in  the 
penal  sum  of  not  less  than  $2,000  nor  more  than  .1^50,000,  for 
each  and  every  elevator  operated,  proportioned  to  the  capacity 
of  the  elevators  or  warehouses,  in  the  discretion  of  said  commis- 
sioners, for  each  license  so  granted,  conditioned  for  the  faithful 
performance  of  duty  as  a  public  warehouseman  and  a  full  and 
unreserved  compliance  with  all  the  laws  of  this  state  in  relation 


SOUTH   DAKOTA.  733 

thereto.  A  fee  of  $1.00  shall  be  paid  for  each  license  by  the 
[)ersc)n,  association,  oi-  corporation  applying  for  the  same.  Id. 
sec.  233. 

PeiiJilty  for  transacting  business  without  license : 

That  any  person,  associati(ju  or  corporation  who  shall  trans- 
act the  business  of  public  warehouseman,  without  first  procur- 
ing a  license  as  herein  provided,  shall  be  deemed  guilty  of  a 
misdemeanor  and  on  conviction  shall  be  fined  a  sum  not  less 
than  $100  for  each  and  every  day  such  business  has  been  car- 
ried on.  Every  such  license  shall  expire  on  the  first  day  of 
August  next  following  the  issuance  thereof,  and  the  said  board 
of  railroad  commissioner's  may  at  any  time  for  good  cause 
shown,  in  their  discretion  revoke  any  warehouseman's  license 
by  them  grantetl,  but  the  said  warehouseman  shall  have  the 
right  of  appeal  from  said  decision  to  the  circuit  court  in  and 
for  the  county  in  which  his  warehouse  is  located,  upon  filing  a 
bond  in  the  sum  of  $200,  conditioned  for  the  payment  of  the 
costs  of  said  appeal  provided  the  same  is  not  sustained  by  said 
court.     Id.  sec.  234. 

Wareliouse  receipts  : 

All  owners  of  such  bonded  warehouses  and  elevators  so  li- 
censed shall  upon  the  request  of  any  person  delivering  grain  at 
such  warehouse  give  a  warehouse  receipt  therefor,  subject  to  the 
[order  of  the]  owner  or  consignee,  which  receipt  shall  bear  date 
corresponding  with  the  receipt  of  the  grain  and  shall  state 
upon  its  face  the  quality  and  grade  fixed  upon  the  same ;  also 
the  amount  deducted  for  dirt  or  cleaning.  All  warehouse 
receipts  issued  for  grain  received  shall  be  consecutively  num- 
bered, and  no  two  receipts  bearing  the  same  number  and  sei-ies 
shall  be  issued  during  the  same  year.  No  warehouse  receipt 
shall  be  issued  except  upon  actual  delivery  of  grain  into  such 
warehouse.  No  such  warehouseman  shnll  insert  into  any  ware- 
house receipt  issued  by  him  any  language  in  anywise  limiting 
or  modifying  his  liability  as  imposed  by  the  laws  of  this  state. 
Id.  sec.  235. 

Above  section  construed : 

The  above  section  will  estop  a  warehouseman  from  setting 
up  as  a  defense  against  a  hona  fide  holder  of  a  receipt,  evidence 


734  SOUTH    DAKOTA    LAWS. 

that  the  goods  were  never  stored  in  his  warehouse.     Fletcher 
V.  Great   Western  Elevator  Co.,  12  S.  D.  643. 

Grain  to  be  delivered  upon  the  return  of  the  receipt : 

On  the  return  of  any  warehouse  receipt  properly  indorsed, 
and  the  tender  of  all  proper  charges  upon  the  property  repre- 
sented by  it,  such  grain,  or  any  equal  quality  of  the  same  grade, 
shall  be  immediately  delivered  to  the  holder  of  such  receipt  as 
rapidly  as  due  diligence,  care  and  prudence,  will  justify.  Noth- 
ing in  this  section  shall  be  construed  to  mean  the  delivery  of 
the  identical  grain  specified  in  the  receipt  so  presented ;  but  an 
equal  amount  of  the  same  grade,  and  if  the  grain  so  delivered 
has  not  been  cleaned  by  said  warehousemen,  there  shall  be 
added  to  the  amount  so  delivered  the  amount  oi-iginally  de- 
ducted from  the  grain  stored  for  dirt,  which  amount  shall  also 
be  delivered  ;  and  when  such  grain  is  to  be  shipjjed  to  some 
terminal  point  where  such  elevator  company  or  warehouseman 
is  there  doing  business,  such  elevator  company  or  warehouse- 
man shall  guarantee  both  weight  and  grade.  Grantham's  An- 
notated South  Dakota  Statutes,  1901,  sec.  236. 

Report  to  railroad  commissioners  : 

That  every  owner  or  manager  of  sucli  licensed  warehouse  or 
elevator,  at  such  times  as  the  commissoners  shall  require,  shall 
furnish  to  the  commissioners  in  writing,  under  oath,  a  statement 
of  the  condition  and  management  of  his  business  as  such  ware- 
houseman. Such  report  shall  show  the  total  number  of  bushels 
of  each  kind  and  grade  of  grain  purchased  and  in  store,  and  the 
number  delivered  out,  and  the  number  remaining  in  store  at 
the  date  of  the  report.  But  no  warehouseman  shall  be  re- 
quired to  weigh  the  grain  on  hand  more  than  once  in  each 
year ;  and  the  warehouseman  shall,  in  addition  to  the  statement 
herein,  be  required  to  furnish  to  the  commissioners  any  other 
information  regarding  the  business  of  his  warehouse  which  the 
commissioners  may  require.     Id.  sec.  237. 

Inspection  of  warehouses : 

The  commissioners  shall  cause  every  warehouse  and  the  busi- 
ness thereof,  and  the  mode  of  conducting  the  same  to  be  in- 
spected, at  such  times  as  the  commissioners  may  order,  b}''  one 
or  more  members  of  the  commission,  who  shall  report  in  writ- 


SOUTH   DAKOTA.  735 

ing  to  the  commissioners  the  result  of  such  examination ;  and 
the  property,  books,  records,  accounts,  papers  and  proceedings, 
kept  at  each  warehouse,  so  far  as  they  relate  to  their  condition, 
operation,  or  management,  shall  at  all  times  during  business 
hours  be  subject  to  the  examination  and  inspection  of  such 
commissioners ;  and  said  board  of  commissioners  may,  in  all 
matters  arising  under  the  provisions  of  this  law,  exercise  the 
power  to  subpoena  and  examine  ^vitnesses  conferred  upon  said 
board  by  law  in  relation  to  railroad  companies.     Id.  sec.  228. 

Grades  to  be  established  : 

The  railroad  commissioners  shall,  before  the  first  day  of 
September  in  each  year,  establish  a  grade  for  all  kinds  of  grain 
bought  or  handled  by  any  elevator  or  warehouse  in  this  state, 
which  shall  be  known  as  "  South  Dakota  grades,"  but  which 
shall  not  differ  from  grades  in  the  state  of  Minnesota,  and  the 
grades  so  established  shall  be  printed  and  published  in  the 
manner  required  by  section  five  [§  232]  of  this  act :  Provided^ 
that  no  such  publication  shall  be  necessary  except  when  changes 
are  made  in  such  grades,  and  when  [then]  the  changes  so  made 
only  shall  be  published.  And  said  board  of  railroad  commis- 
sioners shall  have  supervision  of  the  grading,  weighing  and 
shipping  all  grain  purchased  or  handled  by  public  warehouse- 
men in  South  Dakota  ;  and  all  public  warehousemen  shall 
grade  all  grain  purchased  or  handled  by  them  in  conformity 
with  the  established  "  South  Dakota  grades,"  as  herein  pro- 
vided. Any  person  aggrieved  at  the  weights  or  grades  given 
by  any  warehouseman  may  appeal  to  the  board  of  railroad 
commissioners,  and  it  is  hereby  made  the  duty  of  said  board  to, 
without  delay,  inquire  into  said  grievance  and  adjust  the  same 
in  accordance  with  established  standards.     Id.  sec.  239. 

Moneys  to  be  paid  into  state  treasury  : 

All  moneys  collected  by  the  railroad  commissioners,  as  herein 
provided  for,  shall  be  paid  into  the  state  treasury.     Id.  sec.  240. 

Duty  of  state  treasurer  : 

It  shall  be  the  duty  of  the  treasurer  of  the  state  of  South 
Dakota  to  receive  all  moneys  aforesaid  and  all  fines  and  pen- 
alties collected  by  virtue  of  this  act,  and  to  keep  a  separate  ac- 
count of  the  same,  and  i)ay  the  same  only  on  the  order  of  the 


736  SOUTH    DAKOTA    LAWS. 

railroad  commissioners  to  defra}^  the  expense  of  carrying  the 
provisions  of  this  act  into  effect.     Id.  sec.  241. 

Bailment,  not  a  sale — Insolvency  : 

Whenever  any  grain  shall  be  delivered  to  any  person,  asso- 
ciation, firm  or  corporation,  doing  a  grain  warehouse  or  grain 
elevator  business  in  this  state,  and  receipts  issued  therefor,  pro- 
viding for  a  delivery  of  a  like  kind,  amount  and  gi-ade,  to  the 
holder  thereof  in  return,  such  delivery  shall  be  a  bailment  and 
not  a  sale  of  the  grain  so  delivered  ;  and  in  no  case  shall  the 
grain  so  stored  be  liable  to  seizure  upon  ])rocess  of  any  court 
in  actions  against  such  bailee,  except  actions  by  owners  or  hold- 
ers of  such  warehouse  receipts  to  enfoi-ce  the  terms  of  the  same  • 
but  such  grain  shall  at  any  and  all  times,  in  the  event  of  the 
failure  or  insolvency  of  such  bailee,  be  first  applied  exclusively 
to  the  redemption  of  outstanding  warehouse  receipts  for  grain 
so  stored  with  such  bailee.  And  in  such  event  grain  on  hand 
in  any  particular  elevator  or  warehouse  shall  first  be  applied 
to  the  redemption  and  satisfaction  of  receipts  issued  from  such 
warehouse.     Id.  sec.  242. 

Denial  of  storage  not  permissible  : 

No  person,  association,  firm  or  corporation,  doing  a  grain 
warehouse,  or  grain  elevator  business  in  this  state,  having  is- 
sued a  receipt  for  the  storage  of  grain,  as  in  section  one  of  this 
act  provided,  shall  thereafter  be  permitted  to  deny  that  the 
grain  represented  thereby  is  the  propert}^  of  the  person  to  wliora 
such  receipt  was  issued,  or  his  assigns  thereof,  and  such  receipts 
shall  be  deemed  and  held,  so  far  as  the  duties,  liabilities  and 
obligations  of  such  bailee  are  concerned,  conclusive  evidence 
of  the  fact  that  the  party  to  whom  the  same  was  issued  or  his 
assigns  thereof,  is  the  owner  of  such  grain,  and  is  the  person 
entitled  to  make  surrender  of  such  receipt  and  receive  the  grain 
thereby  promised  to  be  delivered.     Id.  sec.  243. 

Above  section  construed — Pledgee  may  sue  in  his  own 
name : 

Pledgee  being  assignee  of  receipt  may  sue  in  his  own  name. 
Citizens'  Nat.  Bank  v.  Great  Western  Elevator  Co..,  13  S.  D.  1. 

Larceny— Punishment : 

Every  person,  and  every  member  of  any  association,  firm  or 


SOUTH   DAKOTA.  737 

corporation  doing  a  grain  warehouse  or  grain  elevator  business 
in  this  state  wlio  shall  after  demand,  tender  and  oli'er  as  pro- 
vided in  section  nine  [§  236]  of  this  act,  \villfull3^  neglect  or  re- 
fuse to  deliver,  as  provided  by  said  section  nine,  to  the  person 
making  such  demand,  the  full  amount  of  grain  of  the  kind  and 
grade  or  market  value  thereof  which  such  person  is  entitled  to 
demand  of  such  bailee,  shall  be  deemed  guilty  of  larceny  and 
shall  on  conviction  thereof  be  punished  by  a  fine  or  imprison- 
ment, or  both,  as  is  prescribed  by  law  for  the  ])unishmont  of 
larceny.  Grandham's  Annotated  South  Dakota  Statutes,  1901, 
sec.  244. 

Receipts ; 

Upon  the  delivery  of  grain  from  store  upon  any  receipt,  such 
receipt  shall  be  plainly  marked  across  its  face  the  word  "  can- 
celled "  and  shall  thereafter  be  void,  and  shall  not  again  be  put 
in  circulation,  nor  shall  grain  be  delivered  twice  upon  the  same 
receipt.  No  warehouse  receipt  shall  be  issued  except  upon  ac- 
tual delivery  of  grain  into  store  in  the  warehouse  from  which 
it  purports  to  be  issued,  and  which  is  to  be  represented  by  the 
receipts,  nor  shall  any  receipt  be  issued  for  a  greater  quantity 
of  grain  than  was  contained  in  the  lot  or  parcel  stated  to  have 
been  received.  Nor  shall  more  than  one  receipt  be  issued  for 
the  same  lot  of  grain,  except  in  cases  where  receipt  for  part  of 
a  lot  is  desired,  and  then  the  aggregate  receipts  for  a  particular 
lot  shall  cover  that  lot  and  no  more.  In  cases  where  a  part  of 
the  grain  represented  bj'^  the  receipt  is  delivered  out  of  store  and 
the  remainder  is  left,  a  new  receipt  may  be  issued  for  such  re- 
mainder, but  the  new  receipt  shall  bear  the  same  date  as  the 
original  and  shall  state  on  the  face  that  it  is  balance  of  I'eceipt 
of  the  original  number,  and  the  receipt  upon  which  a  part  has 
been  delivered  shall  be  cancelled  in  the  same  manner  as  if  it 
had  all  been  delivered.  In  case  it  be  desirable  to  divide  one 
receipt  into  two  or  more,  or  in  case  it  be  desirable  to  consolidate 
two  or  more  receipts  into  one,  and  the  warehouseman  consents 
thereto,  the  original  receipt  shall  be  cancelled  the  same  as  if 
the  grain  had  been  delivered  from  store,  and  the  new  receipts 
shall  express  on  their  face  that  they  are  a  part  of  another  re- 
ceipt, or  a  consolidation  of  other  receipts,  as  the  case  may  be; 
and  the  numbers  of  the  original  receipts  shall  also  appear  upon 
the  new  ones  issued,  as  explanatory  of  the  change ;  but  no  con- 
47 


738  SOUTH    DAKOTA    LAWS. 

solidation  of  receipts  of  dates  differing  more  than  ten  (10)  days 
shall  be  permitted,  and  all  new  receipts  issued  for  old  ones  can- 
celled, as  herein  provided,  shall  bear  the  same  date  as  those 
originally  issued  as  near  as  may  be.     Id.  sec.  245. 

Schedule  of  rates  to  be  published  : 

Every  warehouseman  of  bonded  \varehouses  shall  be  required 
during  the  first  week  in  September  of  each  year  to  publish  in 
one  of  the  newspapers,  daily  if  there  be  such,  published  in  the 
city  or  village  m  which  said  warehouse  is  situated,  a  table  or 
schedule  of  rates  for  the  storage  of  grain  in  his  warehouse  dur- 
ing the  ensuing  year,  which  rates  shall  not  be  increased  during 
the  year,  and  he  shall  cause  the  same  to  be  plainly  printed  on 
the  warehouse  receipts  or  tickets,  and  such  published  rates,  or 
any  pubhshed  deduction  of  them  shall  apply  to  all  grain  re- 
ceived into  such  warehouse  from  any  person  or  source.  The 
charges  for  storage  or  handhng  shall  in  all  cases  be  equal  and 
just,  and  shall  be  approved  by  the  board  of  railroad  commis- 
sioners before  going  into  effect  and  shall  not  exceed  the  usual 
charges  heretofore  existing.     Id.  sec.  246. 

Attorney  general — State's  attorney  : 

The  attorney  general  of  the  state  shall  be  ex  officio  attor- 
ney for  the  railroad  commissioners  and  shall  give  them  such 
counsel  and  advice  as  they  may  from  time  to  time  require,  and 
he  shall  institute  and  prosecute  any  and  all  suits  which  said 
railroad  commissioners  may  deem  expedient  and  proper  to  in- 
stitute, and  he  shall  render  to  such  railroad  commissioners  all 
counsel,  advice  and  assistance  necessary  to  carry  out  the  pro- 
visions of  this  act  or  any  law  which  said  commissioners  are  re- 
quired to  enforce  according  to  the  true  intent  and  meaning 
thereof.  In  all  criminal  prosecutions  against  a  Avarehouseman 
for  the  violation  of  any  of  the  ])rovisions  of  this  act  it  shall  be 
the  duty  of  the  state's  attorney  of  the  county  in  which  such 
prosecution  is  brought  to  prosecute  the  same  to  a  final  issue. 
Id.  sec.  247. 

Official  bonds  to  be  filed  with  state  auditor : 

All  official  bonds  required  to  be  given  by  any  person,  com- 
pany or  corporation,  pursuant  to  the  provisions  of  this  act, 
shall  be  filed  in  the  office  of  the  auditor  of  the  state  of  South 


SOUTH    DAKOTA.  739 

Dakota,  and  suit  may  be  brought  thereon  in  any  court  havino- 
jurisdiction  thereof,  for  the  use  of  any  person  or  persons  com- 
plaining of  having  sustained  any  injury  by  reason  of  a  viola- 
tion of  the  conditions  thereof.     Id.  sec,  248. 

Certain  combiuatious  unlawful — Posting  of  rules  : 

It  shall  be  unlawful  for  any  proprietor,  lessee  or  manager  of 
any  public  warehouse  to  enter  into  any  contract,  agreement, 
understanding  or  combination  with  any  railroad  company,  or 
any  corporation,  or  with  any  individual  or  individuals  by 
which  the  })roperty  of  any  person  is  to  be  delivered  to  any 
public  warehouse  for  storage  or  for  any  other  purpose  con- 
trary to  the  direction  of  the  owner,  his  agent  or  consignee. 
Each  warehouseman  shall  also  keep  posted  at  all  times  in  a 
conspicuous  place  in  his  warehouse  a  printed  copy  of  the  schedule 
of  grades  established  by  the  commissioners  and  a  printed  copy 
of  this  act,  and  of  the  rules  and  regulations  for  the  manage- 
ment of  warehouses  established  by  the  commissioners,  to  be 
furnished  by  the  railroad  commissioners.     Id.  sec.  249. 

Penalty  for  violation  of  the  provisions  of  this  act : 

That  any  person,  association  or  corporation,  or  any  repre- 
sentative thereof,  w^ho  shall  knowingly  cheat  or  falsely  weigh 
any  w^heat  or  other  agricultural  products  or  who  shall  violate 
the  provisions  of  any  section  of  this  act,  or  w^ho  shall  do  or 
perform  any  act  or  thing  therein  forbidden,  or  who  shall  fail 
to  do  and  keep  the  requirements  as  herein  provided,  shall  be 
deemed  guilty  of  a  misdemeanor  and  shall  on  conviction 
thereof  be  subjected  to  a  fine  of  not  less  [than]  one  hundred 
dollars,  nor  more  than  one  thousand  dollars,  and  be  hable  in 
addition  thereto  to  imprisonment  for  not  more  than  one  year 
in  the  state  prison  at  the  discretion  of  the  court.  Id.  sec. 
250. 

Test  of  scales— Standard  weights  and  measures : 

kSaid  board  of  commissioners  or  any  one  or  more  members 
thereof  may,  at  any  time,  without  notice,  enter  any  public 
warehouse  in  this  state  and  test  and  seal  all  weighing  scales 
ana  measures  used  in  conducting  said  warehouse  business,  and 
for  that  purpose  the  said  commission  is  hereby  authoi-ized  to 
provide  itself  with  standard  weights  and  measures.    Id.  sec.  251. 


740  SOUTH    DAKOTA    LAWS. 

Producers  not  bound  under  the  provisions  of  tJiis  act : 

Nothing  in  tliis  act  siiall  be  S(j  constructed  as  to  prevent  the 
producers  from  marketing,  storing  or  shi})ping  their  own  pro- 
ducts in  any  manner  they  choose,  without  procuring  any  license 
or  giving  any  bonds  under  any  provisions  of  this  act.  Id. 
sec.  252. 

Side  tracks  : 

Every  railroad  company  doing  business  or  operating  a  line 
of  railroad  in  this  state  shall  upon  application  in  writing  made 
by  any  person,  firm  or  corporation  owning  or  operating  an 
elevator,  warehouse  or  flouring  mill,  or  a  manufactory,  upon 
or  immediately  contiguous  to  its  right  of  way,  at  any  of  its 
regular  stations,  provide  suitable  side  track  facilities  and  run- 
ning connections  between  its  main  track  and  such  elevator, 
warehouse,  flouring  mill  or  manufactory,  within  twenty  days 
after  such  application  in  writing  shall  be  served  upon  any 
station  agent  of  such  company  in  the  county  wherein  such  side 
track  and  running  connections  is  desired,  and  such  side  track 
facilities  and  running  connections  shall  be  made  by  such  rail- 
road company  Avithout  reference  to  the  size,  cost  or  capacity  of 
such  elevator,  warehouse  or  flouring  mill ;  but  such  railroad 
company  shall  not  be  required  to  furnish  any  side  tracks  except 
upon  its  own  land,  or  beyond  the  right  of  way  over  which  it 
is  operating  its  line  of  railroad  ;  provided  that  such  side  track 
need  not  be  furnished  when  the  capacity  of  any  elevator  is  less 
than  10,000  bushels,  unless  so  ordered  by  the  board  of  railroad 
commissioners.  Provided  further,  that  any  person  wishing  to 
avail  himself  of  the  benefits  of  this  act  shall  so  notify  the  rail- 
road company  before  building  such  elevator,  and  the  railroad 
company  shall  have  the  privilege  of  granting  him  a  site  on  the 
side  tracks  of  the  company  already  constructed.     Id.  sec.  253. 

Restrictions : 

That  no  elevator,  warehouse,  flouring  mill  or  manufactory 
shall  be  constructed  within  one  hundred  (100)  feet  of  any  exist- 
ing structure,  and  shall  be  at  a  safe  fire  distance  from  all  station 
buildings,  and  so  as  not  to  conflict  with  the  safe  and  convenient 
operation  of  such  railroad.     Id.  sec.  254. 

For  shippers : 

Where  stations  are  more  than  twelve  miles  apart  such  rail- 


SOITTW    DAKOTA.  741 

road  company,  when  i-equired  so  to  do  by  the  board  of  railroad 
commissioners,  shall  construct  and  maintain  a  side  track  for  the 
use  of  shippers  between  such  stations.     Id.  sec.  255. 

Penalty : 

A  faiUn-e  (jr  refusal  on  the  part  of  such  railroad  company  to 
construct  side  tracks  and  running  connections  as  providetl  in 
sections  one  and  three  [§g  25;],  255J  of  this  act,  shall  render  it  lia- 
ble to  the  applicant  for  same  for  all  damages  he  may  sustain  by 
reason  of  such  failure  and  refusal ;  and  such  railroad  company 
shall  forfeit  not  less  than  one  hundred  dollars  nor  more  than 
three  hundred  dollars  for  each  day  it  shall  fail  or  refuse  to 
comply  with  the  provisions  of  said  sections  one  and  three  of 
this  act  as  to  the  construction  of  sucii  side  tracks  and  i-unnino- 
connections;  and  it  shall  be  the  duty  of  the  state's  attorney  of 
the  county  where  such  failure  occurs,  to  prosecute  in  the  name 
of  the  state  all  actions  for  the  recovery  of  such  forfeitures,  and 
when  recovered  the  same  shall  be  paid  into  the  school  fund  of 
the  county.     Id.  sec.  256. 

AVarehouse  Sites. 
Duty  of  railway  commissioners  : 

Whenever  any  person,  firm  or  corporation  shall  have  been 
refused  the  privilege  of  constructing  a  public  warehouse  upon 
the  right  of  wa}^  depot  grounds  or  warehouse  lots  of  any  rail- 
way at  any  station  thereon  in  the  state  of  South  Dakota,  it  shall 
be  the  duty  of  the  board  of  railwa}^  commissioners  to  immedi- 
ately, upon  being  notified  of  such  refusal,  to  serve  ten  days' 
notice  upon  said  railway  company  at  the  time  of  the  investio-a- 
tion  hereinafter  provided  for  and  then  at  the  time  so  appointed 
appear  at  the  station  where  such  public  warehouse  site  is  desired 
and  upon  investigation  and  consideration  of  all  the  circumstances 
surrounding  the  case,  determine  whether  the  public  welfare  will 
be  advanced  by  the  construction  of  another  warehouse  at  such 
station.     Id.  sec.  257. 

Decision  of  the  board  to  be  final,  when  : 

If  the  said  board  of  railway  commissioners  shall  after  such 
consideration  determine  that  the  public  welfare  would  not  be 
advanced  by  the  construction  of  anotlK^-  wareliouse  at  said  sta- 
tion, the  said  board  shall  so  inform  the  applicant  for  said  site 


742  SOUTH    DAKOTA    LAWS. 

and  such  determination  shall  be  final  and  no  further  procedure 
shall  be  had  in  the  premises.     Id.  sec.  258. 

Board  to  fix  location  : 

If  the  said  board  of  railway  commissioners  shall  determine 
after  due  investigation  that  the  construction  of  such  warehouse 
is  necessary  and  that  the  public  welfare  will  be  advanced  there- 
by, then  it  shall  be  the  duty  of  said  board  to  fix  the  location 
of  such  public  wareliouse  upon  the  right  of  way,  depot  grounds 
or  warehouse  lots  of  the  railway  company  concerned,  having 
in  view  in  fixing  such  location  the  interests  and  convenience  of 
said  railway  company  and  of  the  public,  and  a  memorandum  of 
such  determination  and  of  the  location  so  selected  shall  be 
furnished  to  the  applicant  for  such  public  warehouse  site.  Id. 
sec.  259. 

Coiupeiisation  for  property : 

In  all  cases  where  persons  or  firms  invested  with  the  priv- 
ilege of  taking  private  property  for  public  use  under  this  act 
shall  determine  to  exercise  such  privilege,  it  shall  be  the  duty 
of  such  person  or  firm  to  file  a  petition  in  the  circuit  court  of 
the  county  in  which  the  property  to  be  taken  is  situated,  pray- 
ing that  a  just  compensation  to  be  made  for  such  property  may 
be  ascertained  by  a  jury.     Id.  sec.  260. 

Petition  to  contain  what : 

Such  petition  shall  name  the  person  or  firm  desiring  to  take 
such  private  property  for  public  use  as  plaintiff,  and  the  rail- 
way owning  such  property  as  defendant.  It  shall  contain  a 
description  of  the  property  to  be  taken  and  the  purpose  for 
which  the  same  is  to  be  so  taken  shall  be  clearly  set  forth  in 
the  petition.  Such  petition  shall  be  verified  in  the  manner  pro- 
vided by  law  for  the  verification  of  complaints  in  the  circuit 
court,  and  the  affidavit  of  verification  shall  contain  the  further 
statement  that  the  proceeding  is  in  good  faith  and  for  the  pur- 
poses specified  in  the  petition.     Id.  sec.  261. 

Amendments  to  petition : 

If  any  pei-son  or  corporation  who  are  proper  parties  defend- 
ant to  such  pioceeding,  or  any  propert}''  affected  thereby,  shall 
liave  been  omitted  from  said  petition  or  notice,  the  plaintiff 
may  file  amendments  to  the  same,  which  amendments  from  the 


SOUTH    DAKOTA.  743 

lilino:  thereof  shall  have  the  same  effect  as  though  contained  in 
said  petition  or  notice.     Id.  sec.  262. 

Plaintiff's  motion  for  action  : 

At  any  time  after  hlirig  the  petition  the  plaintiff  may  issue  a 
summons  to  the  defendant  or  defendants  which  shall  be  en- 
titled in  the  action  or  proceeding,  and  state  the  time  and  place 
of  filing  the  petition,  the  nature  of  the  proceeding,  and  contain 
a  notice  to  the  effect  that  if  the  defendant  or  defendants  do  not 
appear  in  said  proceeding  within  twenty  days  from  the  service 
thereof,  exclusive  of  the  day  of  service,  the  plaintiff  will  apply 
to  the  court  for  an  order  to  empanel  a  jury  and  ascertain  the 
just  compensation  for  the  property  proposed  to  be  taken  in 
such  proceeding.     Id.  sec.  263. 

Application  for  drawing  of  jurors  : 

If  no  appearance  be  made  in  said  proceeding  by  the  defend- 
ant or  defendants  within  the  tmie  specified  in  the  summons, 
the  plaintiff  upon  affidavit  of  the  default  may  apply  to  the 
court  for  an  order  directing  the  clerk  of  the  court  to  draw  and 
summon  eighteen  jurors  to  attend  at  the  courthouse  or  place 
of  holding  the  circuit  court  of  the  county  to  be  specified  in 
such  order.  Said  jurors  shall  be  drawn  and  summoned  in  the 
same  manner  as  jurors  are  drawn  and  summoned  for  the  reg- 
ular or  special  term  of  the  circuit  court.  If  any  of  the  defend- 
ants shall  have  appeared  in  such  proceeding,  the  plaintiff  shall 
give  such  defendants  three  days'  notice  of  the  time  and  place 
where  application  shall  be  made  to  the  court  for  the  order  to 
draw  and  summon  the  jurors.     Id.  sec.  264. 

Trial  of  action : 

At  the  time  and  place  specified  in  the  order  mentioned  in 
section  eight,  a  special  term  of  the  court  shall  be  held,  at  which 
the  proceedings  in  empaneling  the  jury,  trial,  and  rendering  of 
the  verdict  or  verdicts  shall  be  conducted  in  the  same  manner 
as  trials  of  actions  in  the  circuit  court.     Id.  sec.  265. 

Pleadings : 

No  other  pleadings  shall  be  necessary  in  such  proceeding  ex- 
cept the  petition  of  the  plaintiff,  and  such  as  may  become  neces- 
sary to  enable  the  court  to  determine  conflicting  claims  of  the 


744  SOUTH    DAKOTA    LAWS, 

defendants  to  the  compensation  awarded  by  the  verdict  of  the 
jury  or  some  part  thereof.     Id.  sec.  266. 

Jury  may  view  premises,  when  : 

Upon  the  demand  of  any  party  to  the  proceeding,  if  the  court 
shall  deem  it  necessary,  the  jury  may  view  the  premises  undei' 
the  rules  of  law  for  viewing  by  the  jury.     Id.  sec.  267. 

Issue  or  question  to  be  tried — Limited  to  what : 

The  only  issue  or  question  which  shall  be  tried  b\'  the  jury 
upon  the  petition  shall  be  the  question  of  compensation  to  be 
paid  for  the  property  so  taken,  but  in  case  there  shall  be  ad- 
verse claimants  for  such  compensation  for  any  part  of  such 
property,  the  court  maj^  require  such  adverse  claimants  to  in- 
terplead, so  as  to  fully  determine  the  rights  and  interest  in  such 
compensation.     Id.  sec.  268. 

Verdict  of  j  ury  : 

Upon  the  return  of  the  verdict  the  court  shall  order  the  same 
to  be  recorded,  and  shall  enter  such  judgment  thereon  as 
the  nature  of  the  case  may  require  and  upon  the  payment  or 
tender  of  the  amount  of  damages  assessed  by  the  jury,  with 
the  clerk  of  said  court  for  the  benefit  of  such  railway  company 
said  plaintiff  may  proceed  to  erect  a  public  warehouse  upon  the 
site  selected  as  aforesaid,  and  condemned  as  hereinbefore  pro- 
vided and  to  occupy  the  same.  The  right  of  occupancy  only 
shall  be  vested  in  said  plaintiff  or  his  or  their  heirs  or  assigns. 
Id.  sec.  269. 

Extension  of  lands  condemned  : 

Such  condemnation  of  such  right  of  way,  depot  grounds  or 
warehouse  lots  and  said  right  of  occupancy  shall  only  extend 
to  so  much  of  said  grounds  as  is  necessary  for  the  accommoda- 
tion of  such  public  warehouse  and  for  the  convenient  operation 
thereof,  togetlier  with  necessary  grounds  and  free  access  thereto 
from  the  nearest  public  thoroughfare.     Id.  sec.  270. 

Board  of  appraisers — Duties  of : 

The  ap])licant  of  such  j)ul)lic  warehouse  site  may  thereupon, 
after  five  days'  notice  to  such  railway  company,  which  notice 
shall  be  served  as  summons  are  required  by  law  to  be  served  in 
civil  actions,  apply  to  the  circuit  court  in  and  for  the  county 


SOUTH    DAKOTA.  745 

where  such  proposed  public  warehouse  is  situated,  for  the  ap- 
pointment of  three  appraisers,  whose  duty  it  shall  Ije  to  deter- 
mine the  damage  sustained  by  said  railway  com])aiiy  by  the 
use  and  occupancy  of  such  site  for  such  public  warehouse  ;  such 
appraisers  shall  be  freeholders  of  the  county  wherein  such  site 
is  located,  and  shall  not  be  interested  in  a  like  cpiestion.  The 
ai)pi'aisers  shall  be  duly  sworn  to  perform  their  duties  impar- 
tially and  justly  ;  they  shall  inspect  the  said  location  and  con- 
sider the  injury  which  said  railway  company  will  sustain  by 
the  erection  of  said  warehouse  upon  the  said  site  and  the  oc- 
cupancy thereof,  and  shall  assess  the  damage  which  such  com- 
pany will  sustain  by  the  occupancy  of  said  site  for  such  ])ublic 
warehouse  purposes,  and  they  shall  fortliwith  make  report,  in 
writing,  to  the  clerk  of  such  court  setting  forth  the  descrip- 
tion boundaries  and  amount  of  damages  to  such  right  of  way 
which  they  assess,  to  said  applicant,  which  report  must  be 
filed  and  recorded  by  the  clerk,  and  a  certified  copy  thereof 
may  be  transmitted  to  the  register  of  deeds  of  the  county  where 
the  site  is  situated,  to  be  by  him  filed  and  recorded,  without 
further  proof  or  acknowledgment,  and  in  the  same  manner  and 
w^ith  the  same  force  and  effect  as  provided  for  the  record  of 
deeds.     Id.  sec.  271. 

Payment  of  damages,  how  tendered : 

The  apphcant  for  such  public  warehouse  site  may  thereupon 
pay  or  tender  the  payment  of  the  damages  so  assessed  by  de- 
positing the  same  with  the  clerk  of  said  court  for  the  benefit 
of  said  railway  company,  and  thereupon  and  thereafter  may 
proceed  to  erect  a  public  Avarehouse  upon  the  site  so  selected 
and  condemned  as  hereinbefore  provided  and  to  occup\''  the 
same.  The  right  of  occupancy  only  being  vested  in  said  appli- 
cant or  his  or  their  heirs  and  assigns.     Id.  sec.  272. 

Appeal  may  be  taken  : 

That  either  party  may  appeal  to  the  circuit  court  from  the 
assessment  of  the  said  appraisers  within  thirty  days  after  the 
said  report  it  filed  with  the  clerk  of  the  court  as  hereinbefore 
provided,  and  the  trial  of  such  appeal  shall  be  conducted  in 
all  things  as  a  trial  of  a  civil  action  in  such  court,  but  if  the  ap- 
pellant does  not  recover  a  verdict  more  favorable  to  said  appel- 
lant than  the  assessment  of  the  appraisers,  he  shall  not  recover 


746  SOUTH   DAKOTA    LAWS. 

costs  in  the  circuit  coui-t,  and  ull  cost  of  said  appeal  shall  be 
taxed  against  said  appellant.  Such  appeal  shall  not  interfere 
with  the  right  of  the  applicant  to  occupy  such  site  and  to  erect 
a  public  warehouse  thereon,  but  such  railway  company  shall 
have  a  first  lien  upon  any  building  so  erected  for  any  increase 
of  damages  recovered  in  the  circuit  court,  together  with  the 
costs  incident  thereto.     Id.  sec.  273. 

Pay  of  appraisers : 

Eacii  of  the  appraisers  shall  be  entitled  to  a  fee  of  one  dol- 
lar and  to  ten  cents  for  each  mile  necessarily  traveled  in  making 
such  appraisal.     Id.  sec.  274. 

Costs  to  be  paid  by  applicant : 

All  costs  incident  to  the  appointment  of  appraisers  and  to 
the  appraisal  of  damages  provided  for  herein  shall  be  paid  by 
the  applicant  for  said  public  warehouse  site.     Id.  sec.  275. 

Facilities  for  sbippiug : 

That  upon  the  a])plication  of  any  person  or  firm  owning  or 
occupying  any  public  warehouse,  or  any  mill  adjacent  to  the 
right  of  way  of  any  railway  company,  such  person  or  firm 
shall  be  granted  the  same  facilities  for  shipping  that  are  granted 
any  other  shipper  at  the  same  place.     Id.  sec.  276. 

Frauduleut  bill  of  lading  : 

Every  person  being  the  master,  owner  or  agent  of  any  ves- 
sel or  officer  or  agent  of  any  railroad,  express  or  transportation 
company,  or  otherwise  being  or  representing  any  carrier  who 
delivers  any  bill  of  lading,  receipt  or  other  voucher,  or  by 
which  it  appears  that  any  merchandise  of  any  description  has 
been  shipped  on  board  any  vessel,  or  delivered  to  anj^  railroad, 
express  or  transportation  company  or  other  carrier,  unless  the 
same  has  been  so  shipped  or  delivered,  and  is  at  the  time  ac- 
tually under  the  control  of  such  carrier,  or  the  master,  owner  or 
agent  of  such  vessel,  or  of  some  officer  or  agent  of  such  com- 
pany, to  be  forwarded  as  expressed  in  such  bill  of  lading,  receipt 
or  voucher,  is  punishable  by  imprisonment  in  the  state  prison 
not  exceeding  five  years,  or  by  a  fine  not  exceeding  one  thou- 
sand dollars,  or  both.     Id.  sec.  8130. 

Fraudulent  warehouse  receipts  : 

Every  person  carrying  on  the  business  of  a  warehouseman, 


SOUTH    DAKOTA.  747 

wharfinger  or  other  depositary  of  property,  who  issues  any  re- 
ceipt, bill  of  lading  or  other  voucher  for  any  merchandise  of 
any  description  which  has  not  been  actually  received  upon  the 
premises  of  such  person,  and  is  not  under  his  actual  control 
at  the  time  of  issuing  such  instrument,  whether  such  instru- 
ment is  issued  to  a  person  as  being  the  owner  of  such  merchan- 
dise, or  as  security  for  any  indebtedness,  is  punishable  by  im- 
prisonment in  the  state  prison  not  exceeding  five  years,  or  by 
a  fine  not  exceeding  one  thousand  dollars,  or  both.  Id.  sec. 
8131. 

When  not  liable : 

No  person  can  be  convicted  of  any  offense  under  the  last  two 
sections  by  reason  that  the  contents  of  any  barrel,  box,  case, 
cask  or  other  vessel  or  package  mentioned  in  the  bill  of  lad- 
ing, receipt  or  other  voucher,  did  not  correspond  with  the  de- 
scription given  in  such  instrument  of  the  merchandise  received, 
if  such  description  corresponded  substantially  with  the  marks, 
labels  or  brands  upon  the  outside  of  such  vessel  or  package, 
unless  it  appears  that  the  accused  knew  that  such  marks,  la- 
bels or  brands  were  untrue.     Id.  sec.  8132. 

Duplicate  receipts  or  vouchers : 

Ever}'  person  mentioned  in  sections  sixty-eight  hundred  and 
sixty-six  and  sixtj^-eight  hundred  and  sixty-seven  [§§  8130, 
8131]  who  issues  any  second  or  duplicate  receipt  or  voucher, 
of  a  kind  specified  in  those  sections,  at  a  time  while  any  former 
receipt  or  voucher  for  the  merchandise  specified  in  such  second 
receipt  is  outstanding  and  uncancelled,  without  writing  across 
the  face  of  the  same  the  word  "  duplicate,"  in  a  plain  and  legi- 
ble manner,  is  punishable  by  imprisonment  in  the  state  pi'ison 
not  exceeding  five  years,  or  by  a  fine  not  exceeding  one  thou- 
sand dollars,  or  both.     LI.  sec.  8133. 

Selling  goods  without  consent  of  holder  of  bill  of  lading  : 

Every  person  mentioned  in  section  sixty-eight  hundred  and 
sixty-six  and  sixty-eight  hundred  and  sixty-seven  [^§  8130, 
8131],  who  sells,  hypothecates  or  pledges  any  merchandise  for 
which  any  biU  of  lading,  receipt  or  voucher  has  been  issued  by 
him,  without  the  consent  in  writing  thereto  of  the  person  hold- 
ing such  biU,  receipt  or  voucher,  is  punishable  by  imprisonment 


748  SOUTH   DAKOTA  LAWS. 

in  the  state  prison  not  exceeding  five  years,  or  by  a  fine  not 
exceeding  one  thousand  dollars  or  both.     Id.  sec.  8134. 

Bill  of  lading  must  be  cancelled,  when  : 

Every  person,  such  as  mentioned  in  section  sixty-eight  hun- 
dred and  sixty -seven  [§8131J,  who  dehvers  to  another  any  mer- 
chandise for  which  any  bill  of  lading,  receijit  or  voucher  has 
been  issued,  unless  such  receipt  or  voucher  bore  u]wn  its  face 
the  Avords  "not  negotiable,"  plainly  written  or  stamped,  or  un- 
less such  receipt  is  surrendered  to  be  cancelled  at  the  time  of 
such  delivery,  or  unless,  in  the  case  of  a  partial  delivery,  a 
memorandum  thereof  is  indorsed  upon  such  receipt  or  voucher, 
is  punishable  by  imprisonment  in  the  state  prison  not  exceed- 
ing five  years,  or  by  a  fine  not  exceeding  one  thousand  dol- 
lars, or  both.     Id.  sec.  8135. 

When  law  does  not  apply  : 

The  last  two  sections  do  not  apply  where  property  is  de- 
manded by  virtue  of  process  of  law.     Id.  sec.  8136. 


SOUTH    DAKOTA.  749 


DECISIONS  AFFECTING  WAREHOUSEMEN. 

B. 

Demand — Case  when  unnecessary —  Warehous    closed. 

The  plaintiff  bank  was  the  pledgee  of  a  warehouse  receipt 
deposited  with  it  as  collateral  security  for  the  payment  of  a 
note.  At  the  time  of  the  maturity  of  the  note,  the  elevator  or 
warehouse  was  closed  and  there  was  no  person  in  charge  on 
whom  demand  could  be  made,  nor  was  it  shown  that  the  de- 
fendant had  any  other  elevator  or  warehouse  in  the  state  at 
which  demand  could  be  made,  and  of  which  the  plaintiff  had 
knowledge.  It  Avas  held  that  it  was  not  necessary  for  the 
plaintiff  to  show  any  other  or  further  effort  to  make  demand. 
Citizens''  National  Bank  v.  Great  Western  Elevator  Co.^  13 
S.  D.  1. 

Right  of  stoppage  in  transitu — After  goods  stored  in  ware- 
house. 

The  right  of  stoppage  in  transitu  may  continue  to  exist  even 
though  the  goods  have  been  stored  in  a  warehouse.  In  legal 
contemplation  goods  though  stored  may  still  be  in  transit, 
where  they  are  stored  by  the  carrier.  Powell  v.  McKechnie^  3 
Dak.  319. 

N. 

Pledge — Pledgee  may  maintain  action  in  his  own  name. 

The  pledgee  of  a  warehouse  receipt,  under  the  statute  of  this 
state,  may  maintain  an  action  for  the  conversion  of  the  goods 
representetl  thereby.  Such  pledgee  is  entitled  to  maintain  such 
action  in  his  own  name,  accounting  to  the  pledgor  for  any 
amount  he  may  recover.  Citizens^  National  Bank  v.  Great 
Western  Elevator  Co.,  13  S.  D.  1. 

Warehouse  receipts — False — Estoppel — Measure  of  damages. 

The  plaintiff,  a  bona  fide  holder  of  a  warehouse  receipt, 
brought  an  action  against  the  corporation  which  had  issued 
the  same  for  the  value  of  grain  represented  thereby.  It  ap- 
peared from  the  evidence  that  the  defendant  corporation  at  the 
time  of  issuing  the  receipt  was  operating  numerous  warehouses 


750  SOUTH    DAKOTA    DECISIONS. 

within  the  state  of  Soutli  Dakota.  The  receipt  was  issued  by 
an  agent  of  the  defendant  when  the  grain  which  it  represented 
was  not  actually  in  store.  It  was  transferred  by  the  agent 
to  the  plaintiff  who  took  without  any  knowledge  of  fraud 
and  he  paid  full  value  therefor  in  cash.  It  was  held  that  the 
defendant  was  liable  for  the  act  of  its  agent  in  fraudulently  is- 
suing this  receipt,  and  that  the  defendant  was  estopped  to  den}'^ 
that  it  had  actually  received  the  grain  represented  thereby. 
Further  held,  tlial  the  plaintiff  was  entitled  to  recover  not  the 
value  of  the  wheat,  but  that  his  claim  was  limited  to  the 
amount  which  he  had  paid  for  the  warehouse  receipt.  Fletcher 
V.  Great  Western  Elevator  Co.,  12  S.  D.  643 ;  Maynard  v.  In- 
suroMce  Co.,  34  Cal.  48. 


TENNESSEE.  751 


CHAPTER  XLII. 
TENNESSEE. 

LAWS    PERTAINING   TO    WAREHOUSEMEN. 

Warehouseiiiaii : 

IJereafter,  in  this  state,  every  and  all  person  or  persons, 
firms,  companies  or  corporations  who  shall  receive  cotton,  to- 
bacco, corn,  wheat,  rye,  oats,  hemp,  whiskey,  or  any  kind  of 
produce,  wares,  merchandise,  or  any  description  of  j)ersonal 
property  in  store,  for  hire,  or  who  shall  undertake  to  receive, 
and  take  care  of,  or  to  sell  the  same  for  other  persons,  shall  be 
deemed  and  taken  to  be  a  warehouseman.  Milliken  &  Vertree's 
Code  of  Tennessee,  1884,  sec.  2792. 

Warehouse  receipt  not  to  be  issued  until  produce  is  de- 
livered : 

No  warehouseman  shall  issue  a  receipt  for  cotton,  tobacco, 
grain,  hemp,  whiskey,  or  any  kind  of  produce,  wares,  mer- 
chandise, or  any  description  of  personal  property,  unless  such 
produce  or  personal  property  be  in  the  custody  of  such  ware- 
houseman, and  in  store,  or  upon  the  premises  and  under  his 
control  at  the  time  of  issuing  such  receipt.     Id.  sec.  2793. 

Duplicate  receipts  to  be  so  marked  : 

No  warehouseman  shall  issue  any  second  or  duplicate  re- 
ceipt w^hile  any  former  receipt  for  the  same  produce,  or  other 
personal  property,  or  any  part  thereof,  shall  remain  outstand- 
ing or  uncancelled  without  writing  or  stamping  plainly  across 
the  face  of  the  same  the  word  "  duplicate."     Id.  sec.  2794. 

Shall  hold  produce  or  proceeds  subject  to  receipt : 

No  warehouseman  shall  sell  or  incumber,  ship,  transfer  or 
in  any  way  remove,  or  permit  to  be  removed,  transferred  or 
shipped  beyond  his  control  anything  hereinbefore  mentioned, 
for  which  a  receipt  shall  have  been  given  by  him  until  the  re- 
ceipt for  the  same  be  surrendered  to  and  cancelled  by  him. 
Id.  sec.  2795. 


752  tex^nessee  laws. 

Warehouse  receipts  inatle  negotiable  : 

All  receipts  issued  by  any  wai-ehousenian  for  cotton,  tobacco, 
grain,  hemp,  whiskey  or  any  kind  of  produce,  wares,  mer- 
chandise oi-  any  description  of  personal  property,  shall  be  and 
they  are  hereby  made  negotiable  by  written  indorsements 
thereon  and  delivery  in  the  same  manner  and  to  the  same  in- 
tent as  bills  of  exchange  and  promissory  notes,  and  any  person 
or  persons  to  whom  the  same  may  be  transferred  Ion  a  fide^ 
and  for  value  received,  shall  be  deemed  and  taken  to  be  abso- 
lute owner  of  the  produce,  wares,  merchandise  or  other  per- 
sonal property  therein  specitied,  and  no  clause,  condition  or 
limitation,  either  written  or  printed,  in  said  receipt  shall  be 
held  to  limit  their  negotiability  or  to  affect  the  right  of  the 
holder  or  holders  thereof.     Id.  sec.  2796. 

Nou-iiegotiable  receipts : 

But  all  such  receipts  which  shall  have  the  words  "  not  nego- 
tiable "  plainly  written  or  stamped  thereon  shall  not  be  subject 
to  the  provisions  of  this  chapter.     Id.  sec.  2797. 

Hypothecations  exceeding  actual  advances  forbidden  : 

Ko  warehouseman  shall  pledge,  hypothecate,  or  negotiate 
any  loan  u]ion  any  receipt  for  produce,  merchandise  or  other 
personal  ])roperty  to  a  greater  amount  than  he  has  actually 
paid  or  advanced  thereon.     Id.  sec.  2798, 

Punishments  and  penalties : 

An}'  warehouseman  who  shall  violate  any  of  the  provisions 
of  this  chapter  shall  be  deemed  guilty  of  a  criminal  offense, 
and,  u]wn  indictment  and  conviction  thereof,  shall  be  fined  in 
any  sum  not  exceeding  five  thousand  dollars,  or  shall  be 
punished  by  imprisonment  in  the  penitentiary  of  the  state  for 
not  more  than  five  years,  or  both,  in  the  discretion  of  the  jury 
trying  the  case  ;  and  every  and  all  person  or  persons  aggrieved 
by  the  violation  aforesaid,  shall  have  the  right  to  maintain  an 
action  at  law  against  the  person  or  persons,  corporation  or  cor- 
porations, violating  any  of  the  provisions  of  this  chapter,  to 
recover  damages  which  he  or  they  may  have  sustained  by 
reason  of  such  violation  as  aforesaid,  before  any  court  of  com- 
petent jurisdiction  whether  such  person  or  persons  aforesaid 
shall  have  been  convicted  of  a  criminal  offense  under  this  chap- 
ter or  not.     Id.  sec.  2799. 


TENNESSEE.  ~io'4 

DECISIONS  AFFECTING  WAREHOUSEMEN. 

A. 

Bailment — Demand  necessary. 

In  an  ordinary  case  of  bailment  no  action  would  lie  for  the 
convei'sion  of  the  deposit  until  there  has  been  a  demand  and  a 
refusal,  but  where  a  debt  is  created  by  the  transaction,  jmya- 
ble  on  demand,  the  institution  of  the  suit  is  a  sufficient  demand. 
See  sec.  1947,  Code;  Moore  v.  Mtsjpatrick,  7  Bax.  350; 
Bryant  v.  Packett,  3  Hay,  252. 

Same — Parting  with  property. 

Bailees  generally  cannot  part  with  possession  of  property 
without  the  consent  of  the  owner,  and  the  delivery  of  property 
without  such  consent  should  be  treated  as  a  conversion.  Colyar, 
Trustee,  etc.,  v.  Taylor,  1  Cold.  372;  Mariner  v.  Smith,  5 
Heisk.  203. 

Same — Liability  of  bailee  may  be  affected  by  usage. 

If  a  usage  of  trade  qualified  tiio  bailee's  liability,  testimony 

will  be  received  to   prove    such  usage.     Kelton  v.  Taylor  d; 

Co.,  11  Lea,  264. 

B. 

Ordinary  care — General  rule. 

Ordinary  care  defined  to  be  that  care  and  diligence  which 
good  and  capable  warehousemen  are  accustomed  to  show  under 
similar  circumstances  or  that  which  business  men,  experienced 
and  faithful  in  their  particular  department,  are  accustomed  to 
exercise  Avhen  in  the  discharge  of  their  duties.  The  warehouse 
must  be  a  suitable  building  but  it  need  not  be  fireproof,  and 
the  building  must  be  watched  in  a  manner  proportional  to  the 
risk  which  the  warehouseman  assumes.  Lancaster  Mills  v. 
Merchants'  Cotton- Press  Co.  et  al.,  89  Tenn.  1  ;  ^Yaller  v.  Par- 
ker., 5  Cold.  466  ;  Deming  c5  Co.  v.  Merchants'  Cotton- Press, 
etc.,  Co.,  90  Tenn.  306  ;  Kelton  v.  Taylor  cij  Co.,  11  Lea,  264  ; 
Kirtland  v.  Montgomery,  1  Swan,  452  ;  Polk  v.  Kirtland  et  al., 
9  Heisk.  292  ;  Wallace  v.  Canady,  4  Sneed,  364. 

Same — Row  contract  between  warehouseman  and  depositor  as- 
certained. 

The  proper  manner  of  ascertaining  the  contract  existing  be- 
48 


754  TENNESSEE    DECISIONS. 

tweeii  the  depositor  aud  a  warehouseman  is  not  alone  from  an 
examination  of  dray  tickets,  but  the  relations  of  the  two  must 
be  considered  as  well  as  former  transactions,  and  the  custom 
existing  between  the  parties.  Lancaster  Mills  v.  Merchants' 
Cotton-Press  Co.  et  al.,  89  Tenn.  1. 

Title — Parol  reservations  as  to — When  valid. 

A  warehouseman  advancing  money  to  a  customer  to  purchase 
produce  to  be  shipped  to  him  and  sold  on  the  customer's  ac- 
count, may  validly  stipulate  by  parol  that  the  title  to  the  prop- 
erty thus  purchased  shall  vest  and  remain  in  him  as  security  for 
the  money  advanced,  although  its  possession  passes  temporarilv 
to  the  customer  for  preparation  and  shipment ;  and  upon  the 
title  thus  reserved  the  warehouseman  can  maintain  replevin 
against  the  customer,  his  administrators  or  creditors  for  such 
property  thus  purchased,  as  can  be  identified.  Orange  Ware- 
house Assoc.  V.  Owen,  8G  Tenn.  355. 

Attachment  of  goods  while  hailed — Owner  cannot  maintain 
trover. 

Where  property  was  attached  while  in  the  hands  of  the 
bailee  the  owner  thereof  cannot  maintain  trover  against  the 
officer  having  possession  of  the  property  under  such  attach- 
ment for  the  reason  that  the  plaintiff  in  trover  must  establish 
his  right  of  possession  as  well  as  his  right  of  property,  and 
that  right  must  exist  at  the  time  of  the  conversion.  Caldwell 
V.  Cowan,  9  Yer.  261. 

E. 

Factors — May  pledge  goods  to  secure  their  interest — When  they 
may  refuse  to  comply  with  order  to  sell. 

Factors  who  have  made  advances  upon  goods  intrusted  with 
them  may  pledge  the  same  to  the  extent  of  their-  interest 
therein.  If  such  a  factor  be  instructed  by  the  owner  to  sell 
the  goods  he  may  refuse  to  do  so  if  the  goods  would  not  sell 
for  a  sufficient  amount  to  reimburse  him  for  his  advances. 
Blair  <&  Jefferson  v.  Childs,  10  Heisk.  199. 

H. 

Storage  charges — When  not  recoverable. 

Storage  charges  cannot  be  recovered  when  the  holding  of 


TENNESSEE.  7o5 

depositor  does  not  inure   to   the    benelit  of  the  true  owner. 
Ilainilton  <J&  Co.  v.  Kennedy  et  al.^  62  Tenn.  476. 

L. 

Replevin — Demand  not  neceasary. 

In  order  lo  maintain  an  action  of  replevin,  it  is  not  neces- 
sary to  show  a  demand  on  the  part  of  the  plaintiff,  for  the  prop- 
erty in  controvei'sy,  before  bringing  his  suit.  Draper  v.  Moseley 
et  al.,  3  Bax.  201. 

Detinue — Demand  necessary. 

A  defendant  to  whom  property  has  been  bailed  by  the  ap- 
parent owner  cannot  be  sued  in  an  action  of  detinue  for  the 
property  by  the  true  owner,  unless  a  demand  for  the  property 
had  been  made  previous  to  the  institution  of  the  suit.  Hunter 
V.  Servier,  7  Yer.  127. 

N. 

Loss  by  fire — Warehouseman  not  liable  unless  the  fire  results 
from  his  negligence — Burden  of  proof. 

A  warehouse  and  contents  were  completely  destroyed  by 
fire.  In  an  action  against  the  warehouseman  the  jury  found  that 
he  had  exercised  ordinary  care  in  all  respects  save  that  he  had 
failed  to  keep  closed  a  part  of  one  side  of  his  warehouse  be- 
low the  floor;  further,  the  jury  was  unable  to  find  that  the  de- 
struction of  the  warehouse  resulted  from  this  defect  or  was  in 
any  way  connected  therewith,  and,  in  fact,  was  unable  to  as- 
certain the  cause  of  the  fire.  It  was  /teld  that  under  the  above 
stated  facts  the  warehouseman  was  not  liable,  the  court  hold- 
ing that  the  burden  of  proof  was  upon  the  complainant  to  show 
that  the  fire  was  a  result  of  the  defendant's  negligence.  It 
must  show  that  the  negligence  of  the  defendant  was  the  proxi- 
mate cause  of  the  loss.  Lancaster  Hills  v.  MercJianW  Cotton- 
Press  Co.  et  al.^  89  Tenn.  1  ;  By.  Co.  v.  Manchester  Mills,  88 
Tenn.  653. 

Same — When  statement  of  ivarehouseman  that  goods  are  not  in 
his  possession  amounts  to  negligence — Proximate  cause. 

A  carrier  which  had  received  goods  and  had  stored  them  in 
its  depot  informed  the  consignee  on  several  occasions  when  he 
called  for  the  goods  that  they  had  not  been  received.     The 


T56  TENNESSEE   DECISIONS. 

goods  were  destroyed  by  fire  which  consumed  the  depot  and 
its  contents.  Held  that  the  carrier  was  liable  as  a  warehouse- 
man ;  that  the  failure  of  the  carrier's  servants  to  deliver  the 
goods  when  they  were  actually  in  store,  and  his  ignorance  in 
not  knowing  of  their  receipt,  constituted  negligence,  and  that 
this  mistake  on  the  part  of  the  cariier's  servants  was  the  proxi- 
mate cause  of  the  loss.  Railroad  v.  Kelly ^  91  Tenn.  699 ; 
Butler  V.  Railroad^  8  Lea,  32  ;  Kremer  v.  Express  Co.,  6  Cold. 
360. 

Loss  by  act  of  war — When  bailee  not  liable — Instructions  to  jury. 

A  bailee  of  goods  is  not  liable  for  their  loss  if  he  can  show  that 
the  goods  were  taken  out  of  his  possession  or  from  under  his 
control  by  irresistible  military  authority.  Therefore,  a  charge 
to  the  jury  in  a  suit  against  a  warehouseman  for  the  value  of 
goods  intrusted  to  his  care,  to  the  effect  that  if  they  were  satis- 
fied from  the  evidence  that  the  goods  were  burned,  or  directed  to 
he  hurned,  by  the  military  authority  of  the  Confederate  States 
against  his  consent  that  they  were  to  find  for  the  defendant, 
was  erroneous.  Although  such  charge  was  not  excepted  to  at 
the  trial  the  ap]iellate  court  sent  the  case  back  for  a  new  trial 
on  the  ground  that  this  instruction  constituted  an  actual  error 
which  tended  to  mislead  the  jury  on  a  material  question  in  the 
case.     Weakley  v.  Pearce  et  al.,  5  Heisk.  401. 

P. 

Contracts  to  keep  insured — When  they  do  not  constitute  the 
warehouseman  an  insurer. 

A  cotton-press  company  had  a  contract  with  a  common  car- 
rier that  it  would  insure  in  solvent  companies  all  cotton  which 
it  received  from  the  carrier.  Under  such  an  arrangement  it 
was  held  that  in  view  of  the  fact  that  the  goods,  which  were 
only  partly  insured  and  subsequently  destroyed  by  fire,  did  not 
belong  to  the  carrier,  that  it  was  a  mere  voluntary  imposition 
of  an  obligation  of  insurance  incidentally  beneficial  to  the 
owners  of  the  cotton,  and  that  it  was  not  in  law  or  reason  the 
same  thing  as  the  assumption  of  an  obligation  of  insurance. 
In  this  case  the  loss  occurred  without  negli<rence.  It  was  fur- 
ther Jield  that  although  the  failure  of  the  cotton-press  company 
to  carry  such  insurance  might  result  in  inciilontal  damage  to 
the  owners  of  the  cotton,  the  carrier  would  not  be  liable  for  its 


TENNKSSEE.  757 

loss  unless  it  could  be  shown  tliut  the  carrier  was  under  some 
obligation  to  the  owners  to  insure  or  that  the  cotton-press  com- 
pany should  insure.  There  was  no  privity  between  the  car- 
rier and  the  owners  with  respect  to  insurance.  The  contract 
bound  the  cotton-press  company  itself ;  it  was  to  insure  the 
cotton  and  not  merely  the  carrier's  responsibility  thercfoi- ;  thus 
such  insurance  would  incidentally  inure  to  the  benefit  of  the 
owners  but  this  afforded  no  reason  whatever  for  holding  the 
carrier  liable  to  the  ow^ners  for  the  failure  of  the  cotton-press 
company  to  fully  carry  out  its  obligation  with  the  carrier  in 
respect  of  insurance.  La/>icaster  Mills  v.  Merchants''  Cotto7i~ 
Press  Co.  etal,  89  Tenn.  1. 

Same — Same — Liability  for  breach  of  contract — Recovery  by 
owner  from  other  policies  a  bar. 

A  warehouseman  contracted  with  a  carrier  that  the  goods 
stored  with  him  would  be  fully  covered  by  insurance  for  the 
benefit  of  the  latter.  After  loss  it  appeared  that  the  owners 
had  previously  insured  the  ])roperty  m  their  own  names  and  had 
collected  the  amount  of  such  policies,  the  receipt  therefor 
being  given  as  for  money  "  borrowed  and  received."  It  was 
held  that  this  contract  did  not  constitute  the  warehouseman  an 
insurer  of  the  goods  but  that  the  owners  might  recover  from 
him  such  amount  as  they  could  prove  they  lost  as  a  result  of  the 
failure  of  the  defendant  to  com{)ly  with  the  terms  of  his  con- 
tract. If  the  defendant  could  show  tliat  the  complainant  had 
received  the  full  value  of  the  goods  destroyed  under  its  policy 
of  insurance  he  could  not  recover  against  the  warehouseman  for 
he  had  not  been  damnified  by  the  defendant's  breach  of  con- 
tract. Lancaster  Mills  v.  Merchants'  Cotton-Press  Go.  et  al.^ 
89  Tenn.  1  Deming  <&  Co.  v.  Merchants^  Cotton- Press.,  etc, 
Co.,  90  Tenn.  306. 

Warehouse  receipt — What  is  not. 

A  receipt  signed  jointly  by  the  proprietor  of  a  bonded  ware- 
house and  the  government  storekeeper,  and  issued  to  the  ])ur- 
chaser  of  whiskey  on  storage  in  the  warehouse  and  providing 
for  delivery  of  the  same  upon  the  return  and  surrender  of  the 
receipt,  properly  indorsed,  and  payment  of  government  tax  and 
storage  changes,  is  not  a  technical  warehouse  receipt  within 


758  TENNESSEE   DECISIONS. 

the  meaning  of  tbe  statute  on  that  subject  and  does  not  possess 
the  attributes  conferred  l)y  the  statute,  althoug-h  it  recites  that  it 
"is  given  in  deference  to  the  Tennessee  warehouse  laws." 
Marks  &  Co.  v.  Bridges  &  Son,  106  Tenn.  540. 

Same — Innocent  holder  of  bonded  warehouse  receipt. 

The  holder  of  a  government  bonded  warehouse  receipt,  ex- 
cept he  be  an  innocent  holder  for  value,  cannot  maintain  an 
action  against  the  proprietoi'  of  the  bonded  warehouse  for  con- 
version of  the  whiskey  therein  described  where  the  latter  has, 
by  appropriate  legal  proceedings,  subjected  it  to  public  sale  for 
the  purchase  price  and  become  the  purchaser  thereof  at  such 
sale.     Id. 

Same — A  contract — Estoppel. 

As  between  the  makers  of  a  warehouse  receipt  and  an  as- 
signee thereof  m  good  faith  it  is  not  simply  a  receipt  subject 
to  be  explained  and  contradicted  by  parol,  but  it  is  a  contract 
subject  to  the  rules  applicable  to  other  contracts.  In  an  action 
on  a  warehouse  receipt  a  warehouseman  will  be  estopped  to  show 
by  parol  that  he  did  not  actually  receive  the  goods.  Stewart 
Gwynne  &  Co.  v.  Phonnix  Ins.  Co.,  9  Lea,  104. 

Same — Negotiability — Bona  fide  oiimer  protected. 

A  hona  fide  owner  of  warehouse  receipts  even  though  the 
description  of  the  goods  is  somewhat  vague  takes  title  to  the 
property  thereby  as  against  an  attaching  creditor  who  seizes 
the  goods  while  stored.  Bank  of  Rome  v.  Haselton,  15  Lea, 
216. 

R. 

Bill  of  lading — Exemptions. 

A  stipulation  in  the  bill  of  lading  that  the  carrier  shall  not 
be  liable  for  destruction  of  the  goods  by  fire  while  the  goods 
are  in  its  depot,  station,  yard,  landing  or  warehouse,  is  valid, 
provided  there  is  sufficient  consideration  therefor,  and  further 
provided,  that  it  is  in  no  sense  a  stipulation  against  the  liability 
of  the  carrier  for  its  negligent  acts.  Lancaster  Mills  v.  Mer- 
chants' Cotton-Press  Co.  et  al.,  89  Tenn.,  1  ;  Railroad  Co.  v. 
Craig,  102  Tenn.  298. 


TENNESSEE.  759 

Same — Same — Negligence — I^Jffect  of  acceptance. 

A  c<miiiion  carrier  may  by  <^eneral  stipulations,  based  on  suf- 
ficient consideration,  limit  his  liabilities,  except  such  as  grow 
out  of  his  negligence  or  bad  faith,  and  such  limitations  may  be 
embodied  in  the  bill  of  lading  which  represents  the  goods. 
There  is  a  natural  presumption  when  one  accepts  a  bill  of  lading 
that  he  is  acquainted  with  the  contents  thereof.  Dillard  Bros. 
V.  L.  &  N.  R.  R.  Co.,  2  Lea,  2S8 ;  E.  7'.,  Va.  cfc  Ga.  R.  R. 
Co.  V.  Bnnnley,  5  Lea,  401  ;  Merchants^  Disjyatch  Transpcrta- 
tion  Co.  V.  Block  Bros.,  2  Pickle,  392. 

Same — Same — To  he  strictly  construed. 

Exemptions  contained  in  a  bill  of  lading  are  limitations  upon 
the  common-law  liability  of  the  carrier  and  are  not  favored  by 
the  courts.  They  are  to  be  strictly  construed  and  limited  to 
the  general  risk  of  the  carrier  after  it  obtains  the- custody  of 
the  property,  unless  the  terms  thereof  expressly  extend  to  a 
special  risk.  Dewing  <&  Co.  v.  Merchants'  Cotton- Press,  etc., 
Co.,  90  Tenn.  306. 

Same — Same — ^.s  to  measure  of  damage — Conversion. 

The  ordinary  measure  of  damages,  to  wit,  the  market  value 
of  goods  at  place  of  destination,  less  freights,  applies  to  a  case 
where  carrier  has  been  guilty  of  conversion,  although  Ijill  of 
lading  contains  stipulation  that  the  carrier,  in  case  of  loss,  shall 
be  liable  only  for  the  value  of  the  goods  at  time  and  place  of 
shipment.     Erie  Dispatch  v.  Johnson  ds  Guinee,  87  Tenn.  490. 

Same — Effect  of  transfer. 

A  transfer  and  delivery  of  a  bill  of  lading  vests  the  property 
in  the  transferee,  this  being  regarded  in  law  as  a  constructive 
delivery  of  the  property  itself.  Ochs  et  al.,  Burger  &  Seihel  v. 
Price  et  al,  6  Heisk.  483. 

Same — Same —  Possession  of  bill  of  lading  before  delivery — 
Attachment. 

Factors  received  a  bill  of  lading  for  cotton  which  was  shipped 
to  them  by  the  owner.  When  the  cotton  was  on  the  whai-f  but 
before  the  factor  had  taken  possession  tluM-eof  it  was  attached 
by  a  creditor  of  the  owner.     It  was  held  that  the  title  of  the 


760  TENNESSEE   DECISIONS. 

cotton  was  still  in  the  consignor  and  that  the  possession  of  the 
bill  of  lading  in  this  case  was  not  a  i)ossession  of  the  cotton 
itself.  It  only  gave  authority  to  the  factor  to  reiluce  the  cotton 
to  possession.  Saunders  v.  Bartlett,  Gould  cfc  Heathy  12  Heisk. 
316  ;  Oliver  et  al.  v.  Moore  ds  Co.,  12  Heisk,  482  ;  Woodruff  \. 
N.  dh  0.  R.  R.  Co.,  2  Head,  87. 

U. 

Warehouse  act  constitutional — Does  not  embody  more  than  one 
subject. 

The  act  of  1879  known  as  the  Warehouse  Act  does  not  vio- 
late sec.  17,  art.  2  of  the  constitution  of  the  state  of  Tennes- 
see in  that  it  embodies  more  than  one  subject.  Its  title  is"  An 
act  to  define  warehousemen,  to  regulate  their  duties,  and  to 
affix  penalties  for  the  violation  thereof,  and  relating  to  their 
receipts.''  This  act  embodies  but  one  subject  and  that  is  plainly 
expressed  in  its  title.  Bank  of  Rome  v.  Haselton,  15  Lea,  216  ; 
Monell  V.  Fickle,  3  Lea,  79. 


TUl 


CHAPTEK  XLIIl. 
TEXAS. 

LAWS  PERTAINING  TO  WAREHOUSEMEN. 

Warehouses  and  warehouseiiien — Regulation  of  : 

That  ail  perst>ns,  liiTiis,  companies  or  corporations  who  shall 
receive  cotton,  tobacco,  wheat,  rye,  oats,  rice,  whiskey,  oil,  or 
any  kind  of  produce,  wares,  merchandise,  or  any  description  of 
personal  property  in  store  for  hire,  under  the  jirovisions  of  this 
act,  shall  be  deemed  and  taken  to  be  pubhc  warehousemen  and 
all  warehouses  which  shall  be  owned  or  controlled,  conducted 
and  managed  in  accordance  with  the  provisions  of  this  act  shall 
be  deemed  and  taken  to  be  pubhc  wai-ehouses;  provided,  that 
a  public  warehouse  for  the  storage  of  cotton  may,  within  tlie 
meaning  of  this  act,  include  a  lot  or  parcel  of  land  enclosed 
with  a  lawful  fence,  the  gate  or  entrances  of  which  shall  be  kept 
securely  locked  at  night.  Supplement  to  Sayle's  Civil  Statutes, 
1902,  title  108«,  sec.  1. 

That  the  owner,  proprietor,  lessee  or  manager  of  any  public 
warehouse,  whether  an  individual,  firm  or  corporation,  before 
transacting  any  business  in  such  pubhc  warehouse,  shall  pro- 
cure from  the  county  clerk  of  the  county  in  which  the  ware- 
house or  warehouses  are  situated,  a  certificate  that  he  is  trans- 
acting business  as  a  public  warehouseman  under  the  laws  of 
the  state  of  Texas,  which  certificate  shall  be  issued  by  said 
clerk  upon  a  written  application,  setting  forth  the  location  and 
name  of  such  warehouse  or  warehouses,  and  the  name  of  each 
person,  individual,  or  a  member  of  the  firm  interested  as  owner 
or  principal  in  the  management  of  the  same ;  or  if  the  ware- 
house is  owned  or  managed  by  a  corporation,  the  names  of  the 
president,  secretary  and  treasurer  of  such  cor]ioration  shall  be 
stated,  which  application  shall  be  received  and  filed  Iw  such 
clerk  and  preserved  in  his  office,  and  the  said  certificate  shall 
give  authority  to  carry  on  ;tn(l  conduct  the  business  of  a  public 
warehouse  within  the  meaning  of  this  act,  and  shall  be  re- 


762  TEXAS    LAWS. 

vocable  only  by  the  district  court  of  the  county  in  which  the 
warehouse  or  warehouses  are  situated,  upon  a  proceeding  be- 
fore the  court,  on  complaint  by  written  petition  of  any  person, 
setting  forth  the  particular  violation  of  the  law,  and  upon 
process,  procedure  and  proof,  as  in  other  civil  cases.  The  per- 
son receiving  a  certificate,  as  herein  provided  for,  shall  file  with 
the  county  clei'k  gi-anting  same,  a  bond  payable  to  the  state 
of  Texas,  with  good  and  sufficient  surety,  to  be  approved  by 
said  clerk,  in  the  penal  sum  of  five  thousand  dollars  ($5,000), 
conditioned  for  the  faithfid  performance  of  his  duty  as  a  public 
warehouseman,  which  said  bond  shall  be  filed  and  preserved  in 
the  office  of  said  clerk.     Id.  sec.  2. 

That  on  application  of  the  owner  or  depositor  of  the  property 
stored  in  a  public  warehouse,  the  Avarehouseman  shall  issue 
over  his  own  signature,  or  that  of  his  duly  authorized  agent,  a 
public  warehouse  receipt  therefor,  to  the  order  of  the  per- 
son entitled  thereto,  which  receipt  shall  purport  to  be  issued  by 
a  public  warehouse,  shall  have  date  of  the  day  of  its  issue,  and 
shall  state  upon  its  face  the  name  of  the  warehouse  and  its  loca- 
tion, the  description,  quantity,  number  and  marks  of  the  prop- 
erty stored,  and  the  date  on  Avhich  it  was  originally  received 
in  warehouse ;  and  that  it  is  deliverable  upon  the  return  of  the 
receipt  properly  indorsed  by  the  person  to  whose  order  it  was 
issued,  and  on  payment  of  all  charges  for  storage.  All  such 
receipts  shall  be  numbered  consecutively,  in  the  order  of  their 
issue,  and  when  such  receipt  is  for  cotton,  the  receipt  shall  state 
whether  the  cotton  therein  described  is  exposed  to  the  weather 
or  is  under  shelter ;  and  a  correct  record  of  such  receipts  shall 
be  kept  in  a  Avell  bound  book  which  shall  be,  at  all  reasonable 
hours,  open  to  examination  by  any  interested  person,  and  no 
two  receipts  bearing  the  same  number  shall  be  issued  from  the 
same  warehouse  during  the  same  year,  nor  shall  any  duplicate 
receipt  be  issued,  except  in  the  case  of  a  lost  or  destroyed  re- 
ceipt, in  which  case  the  new  receipt  shall  bear  the  same  date 
and  number  as  the  original,  and  shall  be  plainly  marked  on  its 
face  "  Duplicate";  and  provided  that  no  such  duplicate  receipt 
shall  be  issued  by  the  public  warehouseman,  until  adequate  se- 
curity acce|)table  to  the  warehouseman,  be  deposited  with  or  to 
the  order  of  said  warehouseman,  to  protect  the  party  or  parties 
who  may  finally  hold  the  original  receipt  in  good  faith  and 
for  a  valuable  consideration.     Id.  sec.  3. 


TEXAS.  763 

That  no  public  warehouse  receipt  shall  be  issued  except 
upon  the  actual  [)revious  delivery  of  the  gx^oils  into  tiie  public 
warehouse  or  on  the  premises  and  under  the  control  of  the  pul> 
lic  warehousemen  by  whom  it  purports  to  be  issued,  and  the 
name  of  the  warehouse  shall  invariably  be  specified  in  such  re- 
ceipt.    Id.  sec.  4. 

That  on  the  presentation  and  return  to  the  warehouseman 
of  any  public  warehouse  receipt  issued  by  him  and  properly 
indorsed  and  the  tender  of  all  proper  wai-ehouse  char<^es 
upon  the  property  represented  by  it,  such  property  shall  be  de- 
livered immediately  to  the  holder  of  such  receipt ;  but  no  pub- 
lic warehouseman  who  shall  issue  a  receipt  fpr  goods  shall  un- 
der any  circumstances  or  upon  any  order  or  guarantee  what- 
soever, deliver  the  property  for  which  receipts  have  been 
issued,  until  the  said  receipt  shall  have  been  surrendered  and 
cancelled,  except  in  case  of  lost  receipts,  as  provided  for  in  sec- 
tion 3  hereof,  and  in  default  of  the  strict  compliance  with  the 
provisions  of  this  section  of  this  act,  he  shall  be  held  liable  to 
the  legal  holder  of  the  receipt  for  the  full  value  of  the  prop- 
erty therein  described,  as  it  appeared  on  the  day  of  the  de- 
fault, and  shall,  furthermore,  be  liable  to  the  special  penalty 
herein  provided.  Upon  the  delivery  of  the  goods  from  the 
warehouse  upon  any  receipt,  such  receipt  shall  be  plainly 
marked  in  ink  across  its  face  with  the  word  "  cancelled,"  with 
the  name  of  the  person  cancelling  the  same,  and  shall  there- 
after be  void,  and  shall  not  again  be  put  in  circulation.  Id. 
sec.  5. 

That  no  public  warehouseman  shall  insert  m  the  public  ware- 
house receipt  issued  by  him  any  language  limiting  or  mod- 
ifying his  liabilities  or  responsibilities  as  imposed  by  the 
laws  of  this  state,  excepting  "  not  accountable  for  leakage 
or  depreciation"  or  words  of  like  import  or  meaning.  Id. 
sec.  6. 

That  the  receipt  issued  against  property  stored  in  public 
warehouses,  as  herein  provided  for,  shall  be  negotiable  and 
transferable  by  indorsement  in  blank  or  by  special  indorse- 
ment, and  delivery  in  the  same  manner  and  to  the  same  extent, 
as  bills  of  exchange  and  promissory  not(^s  now  are,  without 
other  formality,  and  the  transferee  or  holder  of  such  public 
warehouse  receipt  shall  be  considered  and  held  as  the  actual 
and  exclusive  owner,  to  all  intents  and  purposes,   of  the  prop- 


764  TEXAS   LAWS. 

erty  therein  described  subject  only  to  the  lien  and  privilege  of 
the  public  warehouseman  for  storage  and  other  warehouse 
charges ;  provided,  however,  that  all  such  public  warehouse 
receipts,  as  shall  have  the  words  "  not  negotiable ''  plainly 
written  or  stamped  on  the  face  thereof,  shall  be  exempt  from 
the  provisions  of  this  section  ;  and  provided,  further,  that  no 
public  warehouseman  shall  issue  warehouse  receipts  against  his 
own  property  in  his  own  warehouse,  but  upon  sale  of  such 
property  in  good  faith,  may  issue  to  the  purchaser  his  public 
warehouse  receipt  in  form  and  manner  as  herein  provided; 
which  issue  and  delivery  of  the  recei])t  shall  be  deemed  to 
complete  the  sale^and  constitute  the  purchaser  full  owner,  as 
aforesaid,  of  the  property  therein  described.  Nothing  in  this 
last  clause  shall  be  construed  to  exempt  the  issuer  of  said  re- 
ceipt for  his  own  goods  in  his  own  public  warehouse  from  com- 
plying with  and  being  subject  in  all  respects,  to  all  other  sec- 
tions and  provisions  of  this  act.     Id.  sec.  7. 

That  any  public  warehouseman  who  violates  any  of  the  pro- 
visions of  this  act  shall  be  deemed  guilty  of  criminal  offense, 
and  upon  indictment  and  conviction  thereof  shall  be  punished 
by  fine  in  any  sum  not  exceeding  five  thousand  dollars,  or  im- 
prisonment in  the  state  penitentiary  not  exceeding  two  years, 
or  by  both  such  fine  and  imprisonment.  And  every  and  all 
persons  aggrieved  by  the  violation  aforesaid,  shall  have  the 
right  to  maintain  an  action  against  the  person  or  persons,  cor- 
poration or  corporations,  so  violating  any  of  the  provisions  of 
this  act,  for  the  recovery  of  damages  which  he  or  they  may 
have  sustained  by  reason  of  such  violation  aforesaid,  before  any 
court  of  competent  jurisdiction,  whether  such  person  or  persons 
so  violatins:  shall  have  been  convicted  of  criminal  offense  under 
the  act  or  not.     Id.  sec.  8. 

That  nothing  in  this  act  shall  be  construed  to  apply  to  pri- 
vate warehouses  or  to  the  issue  of  receipts  by  their  owners  or 
managers  under  existing  laws,  or  to  prohibit  public  warehouse- 
men from  issuing  such  receipts  as  are  now  issued  by  private 
warehousemen  under  existing  laws,  provided,  that  such  ])rivate 
warehouse  receipts  issued  by  public  warehousemen  shall  never 
be  written  on  a  form  or  blank  mdicating  that  it  is  issued,  from 
a  public  warehouse,  but  shall,  on  the  contrary,  bear  on  its  face 
in  large  characters,  the  words,  "  Not  a  public  warehouse  re- 
ceipt."    Id.  sec.  9. 


TEXAS.  765 

Tax  on  grain  elevators  : 

From  each  owner  or  manager  of  every  grain  elevator  doing 
business  for  fees  or  toll  with  a  capacity  of  over  one  huntlred 
thousand  bushels,  fifty  dollai-s ;  on  each  owner  or  manager  of 
every  elevator  with  a  ca})acity  of  fifty  thousand  bushels  and 
not  over  one  hundred  thousand  bushels,  twenty-five  dollars. 
Art.  5049,  subd.  55,  Sayle's  Texas  Civil  Statutes,  1897. 

Note.  Corporations  maybe  formed  to  construct,  purchase  and  maintain 
warehouses,  elevators,  mills,  etc.,  under  the  provisions  of  title  21  of  tjayle's 
Texas  Civil  Statutes,  1897. 


766  TEXAS    DECISIONS. 


DECISIONS  AFFECTING  WAREHOUSEMEN. 

A. 

Bailment — Owner  may  sue  bailee  although  not  a  party  to  the 
bailment. 

It  is  settled  in  this  state,  that  the  owner  of  property  held  by 
a  bailee  ma}''  sue  to  recover  it  from  him,  though  not  a  party  to 
the  contract  of  bailment.  Clay  <&  Broume  v.  Gage  d:  Woody 
1  C.  A.  661. 

Same — Bailee  taking  with  notice  of  claim — Subject  thereto. 

Where  one  buys  property  or  receives  it  as  bailee  with  notice 
of  a  claim  of  title  by  another,  adverse  to  his  vendor  or  bailor, 
he  takes  and  holds  subject  to  the  rights  of  the  adverse  claim- 
ant, though  ostensible  title  may  have  been  in  his  vendor  or 
bailor.  McAnelly  v.  Chapman,  18  Tex.  198  ;  Luckettv.  Town- 
send,  3  Tex.  119. 

Same — Same — Conversion. 

Where  a  bailee  has  knowledge  of  a  claim  of  title  by  another 
adverse  to  his  bailor,  and  by  direction  of  his  bailor  carries  off 
the  property,  he  becomes  responsible  to  such  adverse  claimant 
for  the  value  of  the  property  if  the  latter  proves  to  be  the 
rightful  owner,  whether  the  suit  by  which  such  right  is  estab- 
lished is  then  or  thereafter  brought.  McAnelly  v.  Chapman, 
18  Tex.  198. 

Same — Limiting  liability. 

Bailees  may  by  contract  limit  their  liability  provided  such  lim- 
itation is  not  contrary  to  public  policy.  Coffield  v.  Harris,  2 
App.  Gas.  sec.  316. 

Same — Execution  upon  property  in  hands  of  factor. 

Property  which  has  been  delivered  to  a  factor  for  shipment, 
and  upon  which  the  factor  has  made  advances,  may  neverthe- 
less be  taken  in  execution  by  a  creditor  of  the  owner,  subject 
to  the  advances  which  have  been  made.  Joost  v.  Scott,  19  Tex. 
473. 


TEXAS.  767 

Same —  When  statute  of  limitations  begins  to  run. 

Where  there  was  a  bailment  for  hire  to  be  terminated  when 
demand  made  for  thing  bailed,  held  that  in  the  absence  of  de- 
mand the  statute  began  to  run  upon  the  death  of  the  bailor. 
Wlngate  v.  Whigate,  11  Tex.  430;  Hunter  et  at.  v.  Hubbard, 
26  Tex.  537. 

B. 

Ordina/ry  care. 

The  liability  of  a  warehouseman  for  the  protection  of  goods 
intrusted  to  him  extends  only  to  the  exercise  of  ordinary  care. 
T.  <&  P.  By.  Co.  V.  Schneider  (&  Davis,  1  A  pp.  Cas.  sec.  118; 
Same  v.  Morse,  1  App.  Cas.  sec.  412  ;  Same  v.  Wever,  3  App. 
Cas.  sec.  60  ;  Coffield  v.  Harris,  2  App.  Cas.  sec.  315. 

Delivery —  To  bailor  after  notice  of  real  owner'' s  claim —  Con- 
version— Rule  stated. 

"  If  the  bailee  have  the  temporary  possession  of  the  property, 
holding  the  same  as  the  property  of  the  bailor,  and  assert- 
ing no  title  in  himself,  and  in  good  faith,  in  fulfillment  of  the 
terms  of  the  bailment,  as  expressed  by  the  parties  or  implied  by 
law,  restore  the  property  to  the  bailor  before  he  is  notified  that 
the  true  owner  w^iU  look  to  him  for  it,  no  action  will  lie  against 
him  for  he  has  only  done  his  duty."  If  delivery  be  made  to 
the  bailor  after  notice  of  owner's  claun,  it  will  constitute  a  con- 
version. In  case  of  demand  by  one  other  than  bailor,  the 
bailee  has  a  reasonable  time  in  which  to  ascertain  who  is  the 
owner  of  the  property.  A  failur-e  to  deliver  to  the  true  owner 
wiU  not  constitute  a  conversion  until  after  the  expiration  of  a 
reasonable  time  from  time  of  demand.  Roberts  v.  Tarboro,  41 
Tex.  449  ;  Nelson  v.  Iverson,  17  Ala.  216 ;  Horseley  v.  Moss  <& 
Pennington,  5  Tex.  C.  A.  341. 

Conversion — Delivery  after  notice  of  adverse  interest  in  prop- 
erty stored — Public  ginners. 

The  plaintiff  sued  the  defendant  for  the  conversion  of  one 
half  interest  in  certain  cotton  which  had  been  sent  to  the  latter 
to  be  ginned.  It  appeared  that  the  plaintiff  was  the  owner  of 
a  certain  plot  of  ground  and  that  he  contracted  with  the  lessee 
that  one  half  of  all  the  cotton  produced  by  him  on  such  ground 
was  to  belong  to  the  plaintiff.     After  the  cotton  reached  the 


T<38  TEXAS   DECISIONS. 

defendants'  gin  the  plaintiff  notified  tlieiii  of  bis  claim  and  in- 
structed them  not  to  deliver  the  cotton  witiiout  his  order.  Sub- 
sequently the  defendants  delivered  the  cotton  to  the  lessee  con- 
trary to  the  instructions  of  the  plaintiff.  It  was  held  that  this 
action  on  the  part  of  the  defendants  constituted  a  conversion 
of  the  plaintiff"s  interest  in  the  cotton  stored.  It  was  further 
held  that  the  plaintiff  had  something  more  than  a  landlord's  lien 
on  the  crops  ;  he  had  a  specific  interest  in  the  crops  themselves, 
it  appearing  that  the  plaintiff  furnished  not  only  the  land  but 
also  tools,  implements  and  the  necessary  teams.  That,  there- 
fore, the  landlord  and  tenant  act  did  not  apply  for  it  was  not 
intended  by  the  legislature,  by  this  act,  to  take  away  the  rights 
of  parties  to  make  any  contract  they  might  deem  proper  in  re- 
gard to  the  ownership  of  crops  raised  or  any  other  matter  con- 
cerning the  same.  Ilorsely  v.  Moss  <&  Pennington,  5  Tex.  C.  A. 
341. 

Pledge— Agreement— Right  to  sell — Pledgee  need  not  wait  f&r 
most  favorable  market. 

If  the  agreement  by  which  a  pledge  is  made  fails  to  provide 
that  the  pledgee  may  sell  the  property  deposited,  the  pledgee 
has  the  right  to  sell  the  same  after  default,  demand  made  and 
notice  given.  By  agreement  parties  may  contract  and  regulate 
in  advance  the  remedy  which  the  creditor  must  pursue  in  sub- 
jecting the  property  pledged  to  the  payment  of  the  debt ;  fur- 
ther, such  an  agreement  may  contain  a  vahd  provision  to  the 
effect  that  no  notice  need  be  given  after  default  and  that  sale 
may  be  either  at  auction  or  privately.  In  the  absence  of  such 
agreement  as  to  notice,  the  pledgee  must  give  a  reasonable  no- 
tice of  the  time,  place  and  manner  of  sale.  The  pledgee  is  not 
obliged  to  wait  until  the  most  favorable  market  may  be  se- 
cured for  the  sale  of  the  property.  ICing  &  Co.  v.  T.  B.  <& 
Ins.  Co.,  58  Tex.  669. 

N. 

Loss  by  fire — When  warehousemen  liable. 

Where  goods  m  storage  have  been  destroyed  by  fire  the 
warehouseman  is  liable  for  the  resulting  loss  if  he  were  guilty 
of  negligence,  indifference  or  imprudence.  Vincent  v.  Bather, 
31  Tex.  77. 


TEXAS.  76l> 

Same — Extent  of  warehouseman's  liability. 

A  warehouseman  is  only  responsible  lor  the  loss  of  goods 
destroyed  by  Hre  in  his  warehouse,  when  it  can  be  shown  tliat 
the  loss  was  due  to  the  negligence  or  lack  of  ordinary  care  on 
the  part  of  the  warehouseman  or  his  servants.  Texas  &  P. 
Ry.  Co.  V.  "Weaver.,  3  App.  Cas.  sec.  61 ;  M.P.  By.  Cu.  v.  Doug- 
las i&  Sons,  2  App.  Cas.  sec.  30. 

Same — Evidence  to  prove  negligence. 

Where  it  appeared  that  cotton  was  packed  near  the  old 
tracks  of  a  railroad,  that  an  engine  ran  by  at  a  high  rate  of 
speed  emitting  a  large  quantity  of  sparks,  held  these  facts 
were  sufficient  to  show  negligence  on  the  part  of  the  railroad. 
Texas  c&  Pac.  Ry.  Co.  v.   Weaver,  3  App.  Cas.  sec.  61. 

Same — Same — Burden  of  proof  on  plaintiff. 

The  burden  of  showing  that  a  fire  which  resulted  in  the  loss 
of  plaintiff's  goods  was  caused  by  the  negligence  of  the  defend- 
ant, a  warehouseman,  is  upon  the  plaintiff.  T.  <Jb  P.  Ry. 
Co.  V.  Capjps,  2  App.  Cas.  sec.  36. 

P, 

Advertising  '"'■  Fireproof"  warehouse — Storage  in  another 
warehouse  not  fireproof  not  due  care — Mistake — Custom. 

The  owner  of  cotton  shipped  the  same  by  railroad  to  the  de- 
fendant forstorajje  and  sale.  Through  an  error  the  cotton  was 
received  at  another  warehouse.  Such  other  warehouseman 
recognized  the  defendant  as  the  consignee  and  real  factor. 
The  defendant  thereupon  sent  to  the  owner  his  warehouse  re- 
ceipt in  which  it  was  stated  that  the  cotton  was  stored  in  his 
own  warehouse,  and  a  letter  accompanied  the  same  which  ex- 
plained the  circumstances.  It  appeared  that  the  warehouse  in 
which  the  cotton  was  actually  stored  was  not  fireproof  and 
further  that  the  defendant's  w^arehouse  was  fireproof  and  that 
he  had  advertised  this  fact.  There  was  also  evidence  to  show 
that  it  was  probable  that  the  owner  knew  that  the  defendant's 
warehouse  was  fireproof  and  that  it  constituted  an  inducement 
for  him  to  have  his  cotton  stored  therein.  Shortly  after  its 
storage  the  cotton  and  warehouse  were  destroyed  by  fire.  It 
was  held  that  the  owner  of  the  cotton  had  the  right  to  hav^ 
49 


770  TEXAS   DECISIONS. 

the  same  stored  in  any  warehouse  which  he  might  select,  that 
it  was  the  duty  of  the  defendant  to  use  due  dihgenceand  every 
reasonable  precaution  to  protect  and  preserve  the  cotton  and 
his  allowing  the  cotton  to  remain  stored  in  a  warehouse  which 
was  shown  to  be  of  very  inferior  construction  to  that  of  his 
own  did  not  constitute  such  diligence  and  precaution  ;  that 
this  liability  could  not  be  overcome  by  evidence  of  a  usage  in 
the  city  that  where  cotton  was  deposited  in  the  wrong  ware- 
house thi'ough  a  mistake  it  was  the  custom  of  warehousemen 
to  allow  it  to  remain  there.      Vincent  v.  Rather,  31  Tex.  77. 

Warehouse  receipt — Not  a  ^''Negotiable  instrument'^ — Bona 
fide  holder — Lost  receipt — Indemnity  not  required. 

Warehouse  receipts  which  are  in  form  payable  to  bearer  are 
not  negotiable  in  the  sense  of  bills  and  notes  under  the  law 
merchant.  Even  though  one  obtain  possession  of  a  ware- 
house receipt  in  a  manner  which  would  constitute  him  a  lotia 
fide  holder  of  a  negotiable  instrument,  nevertheless  he  cannot 
recover  on  such  a  receipt  if  the  owner  of  the  property  repre- 
sented thereby  has  not  parted  with  the  title.  It  is  well  settled 
that  the  title  to  personal  property  cannot  be  derived  from  one 
who  has  found  it  or  stolen  it  from  the  owner  ;  therefore,  to  hold 
that  warehouse  receipts  pass  title  to  the  property  they  repre- 
sent, in  the  same  manner  as  negotiable  instruments  pass  title 
to  money,  would  be  in  efifect  to  place  the  symbol  upon  a  better 
footing  than  the  thing  represented.  The  reason  for  the  rule 
therefore,  which  requires  indemnity  from  the  loser  of  a  negotia- 
ble instrument  as  a  condition  precedent  to  recover  does  not 
exist  in  the  case  of  a  lost  warehouse  receipt.  Clay  <&  Browne 
V.  Garje  c&  Wood,  1  C.  A.  (561. 

Same — Transfer  of,  a  symbolic  delivery  of  property. 

The  transfer   and    delivery   of   a    warehouse    receipt    to  a 

purchaser  or  pledgee  is  a  symbolical  delivery  of  the  property 

represented  thereby.     Freidrnan,  Keiler  &  Co.  v.  Peter  et  al., 

18  Tex.  C.  A.  11. 

R. 

Bill  of  lading — Only  indicates  prima  facie  ownership  in  con- 
signee. 

A  bill  of  lading  evidences  jyrima  facie  ownership  of  the 


TKXAS.  771 

goods  in  transit  in  the  consignee.  Evidence  may  be  given  to 
show  that  the  consignor  is  still  the  owner  of  the  property. 
Craig  <&  Ogden  v.  Marx  <&  Kempner,  65  Tex.  649. 

Same— Effect  of  transfer— Not  "negotiable  instruments.'' 

The  transfer  of  a  bill  of  lading  can  give  no  higher  title  to 
the  transferee  than  would  a  delivery  of  the  property  to  him. 
Where  bills  of  lading  are  made  negotiable  by  statute  the  hoidei-, 
in  the  absence  of  either  title  to  the  goods  or  authority  to  trans- 
fer them,  cannot,  by  a  transfer  of  the  instrument,  pass  the  right 
of  property  m  the  goods,  even  though  a  bo7ia  fide  purchaser  for 
value;  be  can  convey  no  greater  rights  than  lie  himself  has. 
Zand.s  V.  Zattin  Bros.,  19  Tex.  C.  A.  240  ;  Freeman  et  al.  v. 
Bank  of  Commerce,  3  App.  Oas.  sec.  340 ;  >S/iaw  v.  Itailwaij 
Co.,  101  U.  S.  557. 

T. 

Liability  for  injury— Heavy  boxes  improperly  packed. 

The  plaintiff,  a  drayman,  called  at  the  warehouse  of  the  de- 
fendant for  certain  boxes  belonging  to  his  employer.  Upon 
arriving  at  the  warehouse,  he  went  inside  in  order  to  ascertain 
Avhich  boxes  he  was  to  remove.  Upon  ]:»lacing  his  hand  ujion 
one  of  the  boxes  for  the  purpose  of  identifying  it,  it  toppled  over 
causing  him  severe  injuries.  An  instruction  to  the  jury  that 
if  they  found  that  the  boxes  had  been  negligently  piled  one 
upon  the  other  and  that  if  such  negligence  resulted  in  the  in- 
jury to  the  plaintiff  that  they  were  to  lind  for  him,  was  held  to 
be  a  correct  instruction.  MaJlory  ds  Co.  v.  Smith,  76  Tex 
262. 


772  UTAH    LAWS. 


CHAPTER  XLIV. 
UTAH. 

LAW8    PEKTAININCr  TO  WAREHOUSEMEN. 

Wareliouseineu  : 

Every  warehouseman  or  other  person  who  shall  safely  keep 
or  store  any  personal  pro})erty  at  the  request  of  the  ow)ier  or 
person  lawfully  in  possession  thereof,  shall  in  like  manner  have 
a  lien  upon  all  such  property  for  his  reasonable  charges  for  the 
stoi-age  or  keeping  thereof,  and  for  all  reasonable  and  proper 
advances  made  thereon  by  him  in  accordance  with  the  usage 
and  custom  of  warehousemen.  Eevised  Statutes  of  Utah,  1898, 
sec.  140?). 

Eiii]»ezzleiueiit  defiiied  : 

Embezzlement  is  the  fraudulent  appropriation  of  property 
by  a  person  to  whom  it  has  been  intrusted.     Id.  sec.  4374. 

Eiubezzlemeut  by  banker,  trustee,  etc. : 

Eveiy  trustee,  banker,  merchant,  broker,  attorney,  iigent, 
assignee  in  trust,  executor,  administrator,  or  collector,  oi*  per- 
son otherwise  intrusted  with  or  having  in  his  control  property 
for  the  use  of  any  other  person,  who  fraudulently  appropriates  it 
to  any  use  or  purpose  not  in  the  due  and  lawful  execution  of 
his  trust,  or  secretes  it  with  a  fraudulent  intent  to  approi)riate 
it  to  such  use  or  purpose,  is  guiltv  of  embezzlement.  Id. 
4377. 

XoTF  It  seems  that  there  are,  in  Utah,  no  decisions  affecting  warehouse- 
men as  such. 


VKKMoNT.  773 


CHArTEK  XLV. 
VERMONT. 

LAWS   PERTAINING    TO    WAREHOUSEMEN. 

Disposition  of  unchiiiiKMl  property — Unclaimed  for  six 
months,  owner  or  consignee  to  be  notified  : 

If  personal  property  stored  in  a  depot  or  other  Ijuilding  of 
a  railroad  or  steamboat  corporation,  or  with  a  wharlingei-,  pub- 
lic storehousekeeper  or  express  company,  without  a  special  con- 
tract for  keeping  the  same,  is  not  claimed  by  the  owner  or 
consignee  within  six  months  from  the  time  it  was  so  deposited, 
the  persons  or  corporation  with  whom  it  is  stored  shall  notify 
the  owner  or  consignee  by  letter  where  the  property  is.  If  the 
owner  or  consignee  is  unknown,  such  persons  or  corporation  at 
the  expiration  of  such  time  may  cause  the  property  to  be  opened 
and  examined  by  the  sheriff  of  the  county  in  which  it  remains; 
and  if  upon  such  examination  the  name  and  residence  of  the 
owner  or  consignee  is  ascertained,  he  shall  be  notified  as  afore- 
said.    Vermont  Statutes,  1894,  sec.  4859. 

If  unknown  and  not  claiming  property,  same  to  be  sold  : 

If  such  owner  or  consignee  does  not,  within  one  month  after 
such  notice,  claim  such  property,  pay  the  charges  thereon  and 
take  it  away,  or  if  the  owner  or  consignee  is  not  ascertained  or 
his  residence  known,  the  property  may  be  sold  by  the  sheriff. 
Id.  sec.  4860. 

Sale  to  be  advertised  three  weeks : 

The  sheriff  shall  sell  such  property  at  public  auction,  giving 
notice  of  such  sale  in  a  newspaper  published  in  the  town  or 
county,  three  weeks  successively,  the  last  of  which  publications 
shall  not  be  less  than  four  Aveeks  previous  to  such  sale.  Such 
advertisement  shall  state  the  time  and  place  of  sale,  the  place 
where  and  the  time  when  the  property  was  received,  a  descrip- 


774  VERMONT   LAWS. 

tion  of  the  same,  the  marks  upon  the  articles  to  be  sold,  the 
place  whence  sent,  if  known,  and  the  name  of  the  owner  or 
consignee,  if  known.     Id.  sec.  4861. 

Duty  of  officer  making  sale  : 

If  the  owner  or  consignee  does  not  claim  the  property,  and 
pay  the  legal  charges  thereon  and  for  advertising  the  same,  be- 
fore the  day  of  sale,  the  shei-iff  shall  sell  the  same,  and  make  a 
sworn  return  of  the  sale,  with  a  list  of  the  property  sold  and  a 
copy  of  the  advertisement  describing  such  property,  within 
twenty  days  after  such  sale,  to  the  state  treasurer.  Id. 
sec.  4862. 

Proceeds — How  disposed  of: 

The  sheritf  shall  also  return  to  the  state  treasurer  the  papers, 
notes,  drafts,  moneys,  or  other  valuables  of  similar  nature,  found 
with  such  property,  which,  with  the  moneys  arising  from  the 
sale,  after  deducting  the  legal  charges  thereon,  and  the  charges 
and  expenses  of  the  sale,  shall  beke])t  by  said  treasurer  for  the 
benefit  of  the  owner  or  consignee  of  such  property,  and  shall 
be  paid  to  him  on  producing  satisfactory  evidence  of  his  right. 
Id.  sec.  4863. 

To  vest  in  state  after  two  years — Record  : 

The  state  treasurer  shall  keep  a  record  of  the  time  when  such 
moneys,  notes,  drafts,  or  other  valuables,  and  the  avails  of  such 
sales  are  received  ;  and  if  the  same  remain  in  his  office  un- 
claimed by  the  owner  or  consignee  thereof  for  two  years,  they 
shall  become  the  property  of  the  state,  and  shall  be  disposed  of 
bv  the  treasurer  for  the  benefit  of  the  state.     Id.  sec.  4884. 


VERMONT.  775 

DECISIONS  AFFECTING  WAREHOUSEMEN. 

A. 

Bailment — Special  contract. 

A  bailee  may  make  a  sjiecial  contract  with  his  bailor  by 
which  he  will  be  absohitely  liable  I'oc  the  goods;  or  he  may 
restrict  his  common-law  liability,  provided  such  restrictions  do 
not  attempt  to  exempt  him  from  loss  or  (hnnage  due  to  his  neg- 
ligence.    Ames  (&  Co.  v.  Melend//,  CA  Vt.  554-, 

Sa7)ie — Power  of  sale — Personal  trust. 

A  bailment  of  property  with  the  power  of  sale  is  a  personal 
trust  to  the  bailee  which  he  cannot  delegate.  Hunt  v.  Doug- 
lass, 22  Vt.  128. 

B. 

Ordinary  care. 

A  warehouseman  is  bound  only  to  use  ordinary  care  and 
diligence  in  the  safe-keeping  of  goods  intrusted  to  him.  Blu- 
nnenthal  v.  Brainerd  et  al.,  38  \'t.  402 ;  Gleason  v.  Estate  of 
Beers,  59  Vt.  581 ;  Briggs  v.  Taylor,  28  Vt.  180. 

Same — No  title  in  hailor. 

If  a  warehouseman  receive  goods,  and  the  bailor  has  no  title 
thereto,  and  such  goods  are  taken  from  tlie  custody  of  the  ware- 
houseman by  the  authority  of  the  law,  as  the  property  of  a 
third  person,  the  warehouseman  may  show  this  in  defense  of  an 
action  brought  against  him  by  the  bailor  for  the  goods.  Bur- 
ton OAid  Ano.  V.    Wilkinson  and  Ano.,  18  Vt.  186. 

Same — Sheriff  hi^eaking  outer  door. 

If  the  goods  of  the  debtor  are  secreted  in  the  Avarehouse  of  a 
third  person,  the  sheriff  will  be  justified  in  breaking  open  the 
outer  door  for  the  purpose  of  taking  them  by  due  process  of 
law,  if  admittance  is  refused  him,  after  he  has  demanded  it 
from  the  proper  person ;  and  he  may  do  this  in  the  night  as 
well  as  day.     Id.  ;  Fullam  et  al.  v.  Stearns,  30  Vt.  443. 

Same — Action  hy,for  tresj)ass. 

Plaintiffs  sued  in  trespass  for  the  breaking  and  entering  of 


776  VERMONT   DECISIONS. 

tbeii'  warehouse  by  the  defendants  and  the  taking  of  certain 
goods  therefrom.  Defendants  pleaded  they  took  the  goods  by 
virtue  of  legal  process.  The  plaintiffs  rej^lied  that  the  goods  were 
the  property  of  A  and  not  of  the  debtor.  The  defendants 
rejoined,  setting  forth  that  A  had  brought  an  action  against 
them  for  the  goods,  and  in  a  trial  on  the  merits  judgment  had 
been  given  for  defendants.  Held,  on  denmrrer  to  this  rtg'oinder, 
that  the  matter  was  well  pleaded,  and  tiuit  the  defendants  were 
entitled  to  judgment.  Burton  and  Ano.  v.  Wilkinson  and 
Alio.,  18  Yt.  186. 

Conversion —  Wrongful  sale. 

A  wrongful  sale  of  property  by  a  bailee  is  a  conversion  there- 
of as  to  both  the  bailee  and  the  purchaser.  An  action  of  trover 
will  lie  against  both  for  such  a  conversion.  Buckmaster  v. 
Moiver  (&  Ford,  21  Vt.  204. 

I. 

Trover — Will  lie  against  bailee  if  property  put  to  an  improper 
use. 

If  the  bailee  apply  the  thing  bailed  to  a  different  use  from 
that  for  which  it  was  bailed,  his  interest  is  determined,  and  the 
bailor  may  sustain  trover  for  the  injury.  Sicift  v.  Moseley, 
10  Vt.  208  ;  Buchmaster  v.  Mower  &  Ford,  21  Vt.  204 ;  Al- 
vord  V.  Davenjport,  43  Vt.  30. 

&ame — Wrongful  detention. 

An  action  of  trover  will  lie  against  a  bailee  for  the  wrong- 
ful detention  of  pi-operty  intrusted  to  him  after  failure  to  de- 
liver on  demand.     Dohorty  v.  Madgett,  58  Vt.  323. 

R. 

Bill  of  lading — Exemptions — Conditions  printed  on  the  hack 
thereof. 

In  a  case  where  there  were  exemptions  and  conditions  printed 
on  the  back  of  a  bill  of  lading,  which  were  not  referred  to  on 
the  face  thereof,  and  there  was  no  evidence  in  the  case  to  show 
that  notice  of  these  conditions  had  been  brought  to  the  atten- 
tion of  the  shipper  of  the  goods,  it  was  held  that  as  the  face  of 
the  instrument  imported  an  absolute  and  express  undertaking 


VERMONT.  777 

that  evidence  raodifying  this  undertaking  should  come  from  the 
party  apparently  so  bound.  Newell  et  al.  v.  Smith  db  Clark 
49  Vt.  255.  ' 

Same— Effect  of  transfer  as  collateral. 

The  indorsement  and  transfer  of  a  bill  of  lading,  as  collateral 
security  for  the  payment  of  a  draft,  vests  in  the  transferee 
title  to  the  property  represented  by  the  bill  of  lading.  Tilde7i 
V.  Minor  etal,  45  Vt.  196;  Davis  &  AuUn  v.  Bradley  (& 
Co.,  28  Yt.  118. 


778  VIRGINIA    LAWS. 


CHAPTER  XLYI. 
VIRGINIA. 

LAWS  PERTAINLMG  TO  WAREHOUSEMEN. 

Transfer  of  receipts  issued  by  licensed  warehouses  : 

Warehouse  or  other  storage  receipts,  with  the  word  "  nego- 
tiable • '  plainly  written  or  stamped  on  the  face  thereof,  issued  by 
any  person  keeping  a  licensed  warehouse  or  other  licensed  place 
of  storage  in  this  state,  for  goods,  wares,  merchandise,  cotton, 
grain,  flour,  tobacco,  lumber,  iron,  or  other  commodity  stored 
with  such  person,  shall  be  transferable  by  indorsement  and  de- 
livery, whether  the  property  specified  in  such  I'eceipt  be  owned 
by  the  person  issuing  the  same,  or  another  :  and  any  person  to 
whom  such  receipt  is  so  indorsed  and  delivered  shall  be  deemed 
the  owner  of  the  property  specified  therein  so  far  as  may  be 
necessary  to  give  eifect  to  any  sale  to  such  person,  or  to  any 
pledge  or  lien  for  his  benefit,  created  or  secured  by  such  trans- 
fer, whether  the  receipt  and  indorsement  be  admitted  to  record 
or  not,  subject  however  to  storage  and  other  charges  of  the 
person  keeping  such  place  of  storage.  Code  of  Virginia,  1887, 
sec.  1791. 

Wheu  receipts  uot  to  be  issued — Duplicate  receipts  : 

x\o  person  shall  issue  any  such  warehouse  or  other  storage 
receipt,  unless  the  property  therein  mentioned  shall  be  actually 
in  store,  or  on  his  premises  and  under  his  control  at  the  time  of 
issuing  such  receipt,  nor  shall  a  second  or  duplicate  receipt  for 
any  property  be  issued  w^hile  a  former  receipt  for  such  property, 
or  any  part  thereof,  is  outstanding  and  uncancelled,  without 
having  written  or  stamped  in  plain  letters,  across  the  face  of 
such  second  or  duplicate  receipt,  the  word  "  duplicate."  Id. 
sec.  1792. 

Proliibition  against  sale,  etc.,  of  property  for  which  re- 
ceipt was  issued,  without  its  surrender  : 

No  person  shall  sell,  incumber,  transfer,  deliver,  remove,  or 


VFKGrXIA.  770 

permit  to  be  removed  beyond  his  immediate  control,  except  to 
enforce  bis  lien  for  storage  and  other  chari^es,  anv  |n-o])ertv  for 
which  a  receipt  has  been  given  as  aforesaid,  without  the  sur- 
render and  cancellation  of  sucb  receipt  or  the  consent  of  the 
holder  indorsed  thereon,  or,  in  case  of  any  partial  dehvcn-y,  the 
indorsement  of  such  delivery  thereon.  Nothing  herein  con- 
tained shall  be  so  construed  as  to  prohibit  the  bona  fide  delivery 
of  the  property  to  the  person  entitled  thereto,  if  the  receipt  he 
lost  or  destroyed  :  Provided,  that  before  such  delivery  is  made, 
notice  of  such  loss  or  destruction  be  inserted  for  two  successive 
\veeks  in  a  newspaper  ])ublished  m  the  city  or  county  wiiere 
the  place  of  storage  is,  or  if  there  bo  no  newspaper  published  in 
the  county,  the  notice  shall  be  posted  for  two  successive  weeks 
at  the  front  door  of  the  courthouse  of  such  county,  and  proof 
of  such  publication  or  posting  shall  be  filed  with  the  person  by 
whom  the  receipt  was  issued.  Nor  shall  anything  herein  con- 
tained be  so  construed  as  to  impose  any  liability  on  any  de- 
positary for  any  property  mentioned  in  any  receipt  as  aforesaid 
taken  from  his  possession  by  any  legal  process,  but  it  shall  be 
his  duty,  when  such  proj^erty  is  so  taken  from  his  possession, 
or  any  process  affecting  or  relating  thereto  is  served  on  him, 
forthwith  to  give  notice  of  the  fact,  if  practicable,  to  the  holder 
of  such  receipt.     Id.  sec.  1793. 

Storage  of  property— A  bailment— What  receipt  to  state  : 

Whenever  any  grain  shall  be  dehvered  to  any  person  for  stor- 
age as  provided  in  section  seventeen  hundred  and  ninety -one, 
such  delivery  shall  in  all  cases  be  deemed  a  bailment  and  not  a 
sale  of  the  property,  notwithstanding  what  is  so  delivered  shall 
be  mingled  by  the  depositary  with  the  grain  of  other  persons. 
The  grain  so  delivered,  or  any  of  like  kind  and  grade  substituted 
for  it  by  the  depositary,  shall  not  be  subject  to  any  of  the  lia- 
bilities of  said  depositary  whatever.  In  any  receipt  given  for  the 
storage  of  grain  as  aforesaid,  it  shall  be  sufficient  to  state  the 
kind,  grade  and  quantity  of  the  grain  so  stored.     Id.  sec.  1794-. 

Wrongful  removal  of  jiroperty  by  warehouseman— Larceny 
— Penalty  for  other  violations  : 

If  any  warehouseman  or  other  depositary,  by  whom  a  receipt 
has  been  given  as  aforesaid,  wrongfully  and  fraudulently  re- 


780  VIRGINIA    LAWS. 

move,  or  permit  to  be  removed  from  its  place  of  storage,  the 
property  mentioned  in  such  receipt,  or  any  part  thereof,  ho 
shall  be  deemed  guilty  of  larceny  thereof.  If  such  warehouse- 
man, or  other  depositary,  wrongfully  and  fraudulently  violate 
any  other  provision  of  this  chapter,  he  shall  be  fined  not  exceed- 
ing one  thousand  dollars,  or,  in  the  discretion  of  the  jury,  be  con- 
fined in  jail  not  exceeding  three  years.     Id.  sec.  1795. 

Forgery  of  receipts— Penalty  : 

If  any  person  wrongfully  and  fraudulently  make  or  issue 
any  paper  purporting  to  be  a  storage  receipt  as  aforesaid,  or 
wrongfully  and  fraudulently  alter  any  storage  receipt,  he  shall 
be  confined  in  the  penitentiary  not  less  than  two  nor  more  than 
ten  years.     Id.  sec.  1796. 

Establishment  of  Avarehouses— Their  discontinuance  : 

Tobacco  warehouses,  which  were  public  wareliouses  of  the 
day  before  this  Code  takes  effect  (May  1,  1888)  shall  continue 
to  be  such  ;  and  the  several  county  and  corporative  courts  may 
hereafter  authorize  the  erection  of  tobacco  warehouses,  or  may 
establish  the  same,  as  public  warehouses,  within  their  respective 
counties  and  corporations  ;  which  said  warehouses  shall  be  con- 
structed, or  shall  have  been  constructed,  so  as  to  keep  safely, 
and  guard  against  fire  and  weather  as  far  as  practicable,  all  to- 
bacco stored  therein,  and  shall  be  kept  in  good  repair  and  at  all 
times  (Sunday  excepted)  be  open  for  receiving,  storing,  selling, 
and  devliering  tobacco :  Provided.,  That  the  owner  of  any  such 
warehouse  shall  have  the  right  to  discontinue  the  same  as  a  public 
warehouse,  after  having  published  a  notice  of  his  intention  to  do 
so  once  a  week  for  four  successive  weeks  in  some  newspaper  pub- 
lished in  the  county  or  corporation  wherein  such  warehouse  is 
situated,  or  if  no  newspaper  be  published  therein,  after  having 
posted  such  notice  at  the  front  door  of  the  courthouse  of  such 
county  or  corporation  for  four  successive  weeks.     Id.  sec.  1797. 

Samplers — Their  appointment  and  term  : 

For  each  such  ])ublic  warehouse  there  shall  be  two  samplers 
of  tobacco,  Avho  shall  be  appointed  by  the  governor,  by  and 
with  the  advice  and  consent  of  the  senate,  for  the  term  of  four 
years,  commencing  on  the   first   day  of  October  succeeding 


VIKCilNIA.  781 

their  appointment.  They  shall  be  appointed  in  January  or 
February  of  the  year  eighteen  hundred  and  ninety,  and  every 
fourth  year  thereafter,  and  the  samplers  in  office  when  this 
code  takes  effect  shall  continue  therein  until  the  term  for  which 
they  were  appointed  shall  have  expired  by  limitation.  Id. 
sec.  1798. 

How  vacancy  lilled  : 

If  a  vacancy  occur  in  the  office  of  sampler  during  his  term, 
the  governor  shall  appoint  another  in  his  place  to  serve  for  such 
part  of  the  term  as  shall  not  have  expired.     Id.  sec.  1799. 

Qualification  and  bond  : 

Every  sampler  shall,  within  sixty  days  after  his  appointment, 
qualify  and  give  bond  before  the  court  of  the  county  or  cor- 
poration wherein  the  warehouse  for  which  he  is  appointed  is 
situated,  in  the  penalty  of  ten  thousand  dollars.  If  he  fails  to 
qualify  and  give  bond  within  the  time  prescribed  his  office  shall 
be  deemed  vacant.  Within  thirty  days  after  the  execution  of 
such  bond,  the  clerk  of  the  court  in  which  it  is  given  shall 
transmit  a  copy  thereof  to  the  auditor  of  public  accounts,  and 
if  he  fail  to  do  so,  he  shall  for  such  failure  forfeit  one  hundred 
dollars.     Id.  sec.  1800. 

Deputy  sampler : 

Any  sampler  may  nominate  to  the  governor  a  deputy,  who 
shall  be  appointed  by  the  governor,  if  approved  by  him.  Such 
deputy,  after  taking  the  oath  required  of  his  principal,  may 
perform  any  of  the  duties  of  his  principal,  whenever  the  j)rin- 
cipal  is  unable  to  perform  the  same  ;  and  the  principal  and  the 
sureties  on  his  official  bond  shall  be  responsible  for  all  the  acts 
of  his  deputy  as  such.     Id.  sec.  1801. 

New  samplers  to  give  receipts  to  predecessors  : 

New  samplers,  appointed  at  any  such  warehouse,  shall  give 
to  those  whom  they  succeed,  a  receipt,  containing  the  numbers, 
marks,  and  gross  tare  and  net  weight,  of  every  hogshead  or  cask 
of  tobacco  which  shall  be  then  at  the  warehouse.  They  shall 
be  thereupon  chargeable  with  the  delivery  of  such  hogsheads 
and  casks  of  tobacco,  but  in  no  way  accountable  for  any  loss  of 
weight  or  defect  of  quality  of  said  tobacco,  which  may  have 
occurred  without  their  fault.     Id.  sec.  1802. 


782 


VIRGINIA    LAWS. 


Sampling,  weighing  and  branding  tobacco  : 

The  samplers  shall  uncase  and  break  every  hogshead,  cask, 
tierce  or  box  of  tobacco  brought  to  their  respective  warehouses 
to  be  sampled  ;  weigh  and  sample  it,  and  mark  or  brand  the 
same,  as  "  Virginia "  or  ''  Western,"  according  to  the  facts ; 
and  also,  with  the  name  of  the  warehouse,  the  tare  of  the  hogs- 
head, cask,  tiei'ce,  or  box  ;  the  quantity  of  net  tobacco  therem, 
and  the  condition  thereof.  The  net  weight  shall  be  ascertained 
by  weighing  the  hogshead,  cask,  tierce  or  box  before  it  is  uncased, 
and  deducting  therefrom  the  weight  of  the  empty  hogshead, 
cask,  tierce  or  box.  The  sample  shall  not  exceed  eight  pounds 
weight,  and  shall  belong  to  the  buyer  of  the  tobacco  from  whom 
it  was  taken.     Id.  sec.  1803. 

Sampler's  receipts : 

The  samplers  shall  thereupon,  if  required  by  the  owner  or 
his  agent,  give  a  receipt  or  note  for  every  such  hogshead,  cask, 
tierce,  or  box  in  the  following  form,  if  the  tobacco  be  good, 
sound,  well-conditioned  and  merchantable  : 


" Warehouse. 

The day  of, 18—. 


VIRGINIA 

TOBACCO. 

Marks. 

No. 

Gross. 

Tare. 

Net. 

Passed  : 

Received  of hogsheads, 

etc.,   of    tobacco,    marks,    numbers, 
weights,  and   species,  as  per  mai'gin, 

to  be  delivered  to  the  said or 

order,  on  demand. 

Witness  our  hands. 

"  Samplers," 

Id.  sec.  1804. 


When  tobacco  unsound,  etc.,  or  western,  what  receipt  to 
state  : 

If  the  tobacco,  received  to  be  sampled,  be  found  to  be  not 
good,  sound,  well  conditioned,  merchantable  and  clear  of  trash, 
the  samples,  in  addition  to  the  marks  required  as  to  passed  to- 
bacco, if  required  by  the  owner  or  his  agent,  shall  also  give  a 
receipt  in  the  form  prescribed  for  passed  tobacco,  except  that 


VIRGINIA.  7«3 

the  word  "  refused  "  shall  be  [)laiidy  written  on  the  lace  there- 
of, instead  of  the  word  "  passed." 

If  the  tobacco  be  of  good  quality,  and  only  too  high  in  order 
for  shipment,  then  the  sam))ler  shall  not  mark  the  receii)t  "  re- 
fused," but  shall  mark  it  with  the  words  "too  high."  If  the 
tobacco  sampled  shall  be  western,  the  receipt  shall  so  state. 
Id.  sec.  1805. 

Penalty  for  false  branding,  etc.: 

]f  any  person  fraudulently  make  any  false  mark  or  brand 
upon  any  such  hogshead,  cask,  tierce,  or  box,  or  with  a  fraudu- 
lent intent,  alter,  obliterate,  or  remove  any  mark  or  brand 
thereon,  or  shift  the  contents  thereof,  or  cause  the  same  to  be 
done,  he  shall,  for  every  such  offense,  forfeit  fifty  dollars. 
And  if  any  person  use,  or  permit  to  be  used  on  any  hogshead, 
cask,  tierce,  or  box  of  tobacco,  any  name,  brand,  or  mark  in- 
dicating the  name  of  a  planter  who  neither  raised  nor  sold  said 
tobacco,  he  shall  forfeit  twenty  dollars  for  each  hogshead,  cask, 
tierce,  or  box  so  falsely  marked  or  branded  ;  and  if  any  per- 
son other  than  the  owner,  or  the  authorized  agent  of  sucli 
owner,  alter,  obliterate,  or  remove  any  mark  or  brand  upon 
any  prized  package  of  tobacco,  or  otherwise  divert  said  prized 
package  from  the  warehouse  to  which  it  was  directed  to  be 
weighed  and  sampled,  he  shall  forfeit  liL'ty  dollars  for  each 
offense.     Id.  sec.  1806. 

"  Western  tobacco  "  to  be  so  branded  : 

Before  any  unmanufactured  western  tobacco,  whether 
stemmed  or  unstemmed,  brought  to  Virginia  in  hogsheads  or 
prized  packages,  shall  be  offered  for  sale,  or  shipped,  or  ex- 
ported therefrom,  except  such  tobacco  in  transittt  the  owner 
thereof,  his  agent,  or  a  sampler  of  tobacco,  shall  mark  or  brand 
each  hogshead  or  package  with  the  words,  "  Western  tobacco." 
If  any  person  shall  sell  or  offer  for  sale,  or  ship  or  export  any 
such  tobacco  representing  the  same  by  marks,  l^rands,  or  other- 
wise as  Virginia  tobacco,  he  shall  be  fined  not  less  than  fifty 
nor  more  than  one  hundred  dollars,  for  each  hogshead  or  pack- 
age so  sold  or  offered  for  sale,  one  half  to  go  to  the  use  of  the 
state  and  the  other  half  to  the  informer.     Id.  sec.  1807. 

Loose  tobacco : 

The   samplers   shall    receive   and    ^veigh    all    loose    tobacco 


784  VIRGINIA   LAWS. 

brought  to  their  warehouses,  and  give  certificates  for  the 
same,  and  issue  manifests  thereof  when  delivered  out.  Id. 
sec.  1808. 

Samplers  to  give  receipts  : 

They  shall,  inimethately  on  the  delivery  of  any  tobacco  to 
their  warehouses,  if  required  by  the  person  bringing  the  same, 
give  a  receipt  therefor,  describing  the  same  as  unsampled  to- 
bacco. Any  sampler  refusing  to  do  so  shall  forfeit  to  the 
owner  of  such  tobacco  fifty  dollars.     Id.  sec.  1809. 

Penalty  for  delivering  tobacco  without  order  of  owner : 

Any  sampler  who  shall  deliver  from  his  warehouse  any  to- 
bacco without  an  order  from  the  owner  or  his  authorized  agent, 
shaU,  for  every  hogshead,  cask,  or  parcel  of  tobacco  so  delivered, 
forfeit  to  the  owner  one  hundred  and  fifty  dollars.  Id. 
sec.  1810. 

Samplers  to  furnish  manifests  : 

The  samplers  shall  furnish  with  all  tobacco  delivered  out  of 
their  warehouses,  if  required  by  the  owner  or  his  authorized 
agent,  a  manifest  or  list  of  the  same,  describing,  as  in  notes,  re- 
ceipts, or  certificates  given  therefor,  when  the  same  was  in- 
spected, or,  in  the  manifest  thereof,  when  received  from  another 
warehouse.     Id.  sec.  1811. 

Receipts,  etc.,  to  be  printed  and  dated : 

All  notes  or  receipts  and  manifests  shall  be  on  printed  blanks, 
and  the  date  inserted  at  full  length.     Id.  sec.  2812. 

Penalty  for  illegal  receipts,  etc. : 

Every  sampler  who  shall  issue  a  note,  receipt,  or  manifest,  in 
any  other  manner  than  is  prescribed  by  law,  shall  be  fined  one 
hundred  dollars.     Id.  sec.  1813. 

Resampling  : 

The  samplers  of  any  warehouse,  at  the  request  of  the  owner, 
or  his  authorized  agent,  of  the  sampled  tobacco  stored  therein, 
shall  resample  and  weigh  it,  and  if  found  to  be  damaged,  or  that 
any  part  of  it  has  been  embezzled,  it  shall  be  so  entered  on  their 
books,  and  be  subject  to  the  order  of  the  owner.     Id.  sec.  1814. 


vuMiiNiA.  786 

Penalty  for  delivering  wronj^  tobacco  : 

If  any  sampler  deliver  out,  in  discharge  of  any  note  or  re- 
ceipt, other  tobacco  than  that  for  which  the  same  was  issued, 
or  alter  or  shift  any  tobacco  from  the  hogshead  oi-  cask,  in 
which  the  same  was  received,  except  in  a  case  expressly  author- 
ized by  law,  he  shall  be  fined  for  every  such  offense  one  hun- 
dred and  fifty  dollars.     Id.  sec.  1815. 

Penalty  for  not  delivering  tobacco  on  demand  : 

If  any  sampler  fail  to  deliver  any  lubacco,  when  it  is  de- 
manded, to  the  owner  thereof,  or  his  authorized  agent,  he  shall 
forfeit  to  such  owner  double  the  value  of  such  tobacco.  Id. 
sec.  1816. 

Samplers  to  keep  books— What  entries  to  make  : 

The  samplers  shall  provide  and  keep  books,  in  which  they 
shall  enter  the  numbers,  weights,  marks,  the  names  of  owners 
of  all  tobacco  received,  sampled,  or  delivered  out  by  them,  as 
well  at  the  time  the  same  was  received  as  at  the  time  the  same 
was  sampled  or  delivered  out,  and  note  the  state  and  condition 
of  each  hogshead,  cask,  tierce,  or  box  ;  and  in  which,  also,  they 
shall  keep  fair  and  true  account  of  all  money  received  by  them 
to  the  use  of  the  proprietors  of  the  warehouses.     Id.  sec.  1817. 

Not  to  buy  tobacco,  etc. : 

If  any  sampler  directly  or  indirectly,  buy,  stem  or  manufac- 
ture any  tobacco  other  than  tobacco  grown  on  his  plantation, 
he  shall  forfeit  ten  dollars  for  every  hundred  pounds  of  tobacco 
so  bought,  stemmed  or  manufactured.     Id.  sec.  1818. 

Discharge  from  liability  on  delivery  of  tobacco  ; 

If  any  hogshead  or  cask  of  tobacco  be  delivered  out  by  a 
sampler,  and  received  by  the  owner,  such  sampler,  from  the 
time  of  such  delivery,  shall  be  discharged  from  any  liability  by 
reason  of  the  fact  that  the  said  tobacco  was  unsound  or  un- 
merchantable, or  of  less  quantity  than  the  notes  or  receipts 
given  for  the  same  specify,  unless  it  be  proved  that  such  loss 
was  due  to  the  negligence  of  the  sampler.     Id.  sec.  1819. 

Samplers'  fees  : 

There  shall  be  paid  to  said  samplers  for  each  hogshead,  cask, 
5Q 


786  VIKGINIA    LAWS. 

tierce,  or  box,  weighing  not  less  than  five  hundred  pounds, 
sampled  by  them,  one  dollar  for  opening,  sampling,  coopering 
up,  furnishing  nails,  marking,  and  Aveighing,  to  be  paid  by  the 
owner.  For  a  review,  the  fees  shall  not  exceed  one  dollar ;  and 
for  re-sampling  the  fees  shall  be  the  same.     Id.  sec.  1820. 

For  rent : 

For  each  hogshead,  cask,  tierce,  or  box  of  tobacco,  weighing 
not  less  than  live  hundred  pounds,  received,  sampled,  stored, 
or  delivered  out  of  any  warehouse,  rent  shall  be  paid  to  the 
samplers  at  the  following  rates,  to  wit :  Seventy-five  cents  for 
a  period  of  four  months,  or  any  less  time,  and  ten  cents  for  each 
month  or  part  of  a  month  after  four  months  that  the  tobacco 
shall  remain  in  said  warehouse,  to  be  paid  by  the  purchaser  or 
person  to  whom  the  hogshead,  cask,  tierce,  or  box  is  delivered, 
which  rent  shall  be  for  the  exclusive  use  of  the  proprietors  of 
the  warehouse.     Id.  sec.  1821. 

For  storage : 

For  every  hogshead,  cask,  tierce,  or  box,  of  the  weight  afore- 
said, of  sampled  tobacco,  received  on  storage  at  any  warehouse, 
there  shall  be  paid  to  the  samplers  thereof  one  dollar.  Id. 
sec.  1822. 

For  delivering  tobacco : 

There  shall  be  paid  to  the  samplers  of  each  hogshead,  cask, 
tierce,  or  box,  of  five  hundred  pounds  and  over,  delivered  out 
of  their  Avarehouse,  fifty  cents,  to  be  paid  by  the  person  to 
whom  the  hogshead,  cask,  tierce,  or  box  is  delivered.  Where 
tobacco  is  reviewed  or  resampled  in  the  same  warehouse  in 
which  it  was  originall}'  sampled,  there  shall  be  but  one  storage 
fee  and  one  delivery  fee,  for  each  hogshead,  cask,  tierce,  or  box  : 
Provided.,  that  should  there  be  anv  extra  storage  on  said  re- 
sampled  tobacco,  it  shall  attach  to  the  resampled  number. 
and  be  paid  by  the  purchaser.     Id.  sec.  1823. 

When  only  half  fees  to  be  paid  : 

For  such  services  by  the  sampler,  rent,  and  storage,  as  are 
mentioned  in  the  four  presiding  sections,  only  one  half  the 
amount  prescribed  therein  shall  be  paid  where  the  hogshead, 
cask,  tierce,  or  package  is  of  less  weight  than  five  hundred 


VIRGINIA.  787 

pounds,  and  the  same  shall  be  paid  by  the  persons  respectively 
mentioned  in  said  sections.     Id.  sec.  1S24. 

Fees  for  sale  of  loose  tobacco  : 

For  all  loose  tobacco  sold  at  any  public  warehouse,  the  fol- 
lowing charges  shall  be  paid,  to  wit:  On  every  one  hundred 
pounds  of  such  tobacco  so  sold,  eight  cents  shall  be  paid  by  the 
owner  and  the  like  sum  by  the  purchaser,  one  half  of  which 
shall  be  for  the  samplers  and  the  other  half  for  the  pi'oprietors 
of  the  warehouse  ;  and  there  shall  be  no  other  charges  or  fees 
for  loose  tobacco  sold  as  aforesaid,  but  the  said  charges  shall 
be  in  full  of  all  services  rendered  in  respect  thereto,  including 
receiving,  unloading,  weighing,  and  delivering.     Id.  sec.  1825. 

Wlieu  fees  to  be  paid  : 

The  samples  shall  require  payment  of  all  sums  to  be  paid  to 
the  proprietors  of  their  wareliouses  before  the  delivery  of  the 
tobacco  for  which  they  are  due,  and  shall  not  be  bound  to  de- 
liver any  such  tobacco  until  such  sums  and  all  their  own  fees 
have  been  paid.     Id.  sec.  1826. 

Wheu  sampler  from  another  warehouse  to  act — How  his 
fees  are  paid: 

A  sampler  from  another  warehouse  shall  be  authorized  to 
act  whenever  his  services  shall  be  required  in  consequence  of 
the  disagreement  in  opinion  of  the  two  samplers  at  any  ware- 
house as  to  the  quality  of  tobacco,  or  in  consequence  of  the  ab- 
sence of  either  of  them,  or  to  sample  tobacco  belonging  to  one 
of  them.  He  shall  be  paid  for  his  services  in  the  first  case,  out 
of  the  fees  of  the  other  two  samplers  in  the  proportion  to  the 
time  he  acts,  and,  in  the  other  cases,  out  of  the  fees  of  the  sam- 
pler who  is  absent,  or  whose  tobacco  is  to  be  sampled.  Id. 
sec.  1827. 

Division  of  fees,  etc.,  prohibited  : 

No  sampler  shall  divide  his  sample  fees  with  any  person,  nor 
shall  any  sampler  or  ])i-oprietor  of  any  warehouse  pay  to  an- 
other a  bonus  to  induce  tobacco  to  be  carried  to  his  warehouse ; 
and  if  any  sampler  or  proprietor  of  any  warehouse  violate  this 
provision,  or  demand  or  receive  foi'  his  services  any  other  fees, 
greater  or  less  than  are  allowed  by  law,  he  shall   be  deemed 


788  VIRGINIA    LAWS. 

guilty  of  a  misdemeanor ;  and  any  agent  or  representative  of 
any  person  for  the  sale  of  tobacco,  who  receives  any  rebate  oi- 
bonus  of  any  part  of  the  sampler's  fees,  or  warehouse  fees, 
shall  be  deemed  guilty  of  a  misdemeanor,  and  on  conviction 
thereof  be  fined  not  less  than  twenty  nor  more  than  one  hun- 
dred dollars  :  Provided,  that  nothing  in  this  section  shall  be 
construed  to  prevent  any  sampler  or  proprietor  of  a  warehouse 
from  making  and  publishing  a  uniform  reduction  for  the  bene- 
fit of  the  public  generally,  of  the  fees  to  be  charged  at  his  ware- 
house for  the  services  of  such  sampler,  or  the  rent  of  such  ware- 
house, respectively.     Id.  sec.  1828. 

When  samplers  to  settle  Avitli  proprietors — Insurance  : 

The  samplers  of  each  warehouse  shall  account  for  and  pay  to 
the  proprietors  thereof,  on  the  tenth  day  of  April,  the  tenth 
day  of  July,  the  tenth  day  of  October  and  the  tenth  day  of 
January,  in  each  year,  all  money  received,  or  which  ought  to 
be  received,  by  them,  to  the  use  of  said  proprietors.  And  the 
proprietors  of  every  such  warehouse  shall  keep,  free  of  charge 
to  the  planter  and  owner  of  tobacco,  an  open  policy  of  insur- 
ance upon  their  respective  warehouses,  sufficient  to  cover  every 
loss  by  fire  or  water  which  any  person  having  tobacco  stored 
therein  may  sustain ;  and  for  a  failure  so  to  do,  they  shall  be 
liable  to  the  owners  thereof  for  any  damage  or  loss  they  may 
sustain  by  reason  of  any  partial  or  total  destruction  of  said 
tobacco  by  fire  or  water.     Id.  sec.  1829. 

Where  tobacco  of  planter  to  be  stored — To  be  sampled  be- 
fore sale : 

Every  commission  merchant  or  other  person,  to  whom  un- 
manufactured tobacco,  in  hogsheads  or  packages,  owned  by  a 
farmer  or  planter  is  consigned  for  sale,  shall  store  such  tobacco 
in  a  public  warehouse,  where  it  is  practicable,  unless  otherwise 
instructed  in  writing  by  the  owner  at  the  time  of  shipment, 
and  it  shall  be  unlawful  for  any  person  to  offer  such  unmanu- 
factured tobacco,  when  so  stored  in  a  public  warehouse,  for  sale 
by  sample,  unless  such  sample  has  been  drawn  and  certified 
by  a  sampler  of  tobacco  appointed  by  the  governor,  and  quali- 
fied according  to  law  :  Provided.,  that  the  owner  of  any  pack- 
age of  prized  tobacco,  in  person  or  l)v  his  authorized  agent  act- 
ing for  him,  may  have  the  same  exposed  for  sale,  uncased  and 


VIRGINIA.  789 

uncovered  and  sampled,  as  loose  tobacco,  in  the  presence  of 
both  buyer  and  seller,  without  being  sampled  according  to  the 
provisions  of  this  section.     Id.  sec.  1830. 

Proprietors  to  furnish  scales,  etc. : 

The  proprietor  of  every  warehouse  shall  have  proper  scales 
or  balances  and  weights,  and  all  other  proper  conveniences 
provided,  and  see  that  they  are  kept  in  repair,  and  that  the 
weights  conform  to  the  lawful  standard.     Ld.  sec.  Ibol. 

Removal  of  samplers  : 

On  complaint  to  the  governor  of  neglect  of  duty  or  miscon- 
duct by  a  sampler,  he  shall  hear  the  said  complaint,  upon  giv- 
ing notice  of  the  time  and  place  of  hearing  to  said  sampler,  and 
being  satisfied  that  the  complaint  is  sustained,  he  shall  remove 
him.     Id.  sec.  1832. 

Use  of  false  brand — Punished  : 

If  any  person  use,  or  permit  to  be  used,  on  any  cask,  box,  or 
keg  of  manufactured  tobacco,  any  brand  or  mark  indicating  a 
place  or  a  manufacturer  different  from  the  place  in  which,  or 
the  manufacturer  by  whom,  it  was  really  manufactured,  he 
shall  forfeit  ten  dollars  for  each  cask,  box,  or  keg  so  falsely 
marked  or  branded  ;  one  half  thereof  shall  be  to  the  informer. 
Id.  sec.  1833. 

Manufactured  tobacco : 

None  of  the  provisions  of  this  chapter,  other  than  the  pre- 
ceding section,  shall  be  construed  to  apply  to  the  manufactured 
tobacco.     Id.  sec.  1834. 

Nesting  punished  : 

If  any  person  nest  a  hogshead  of  tobacco  with  inferior  to- 
bacco, or  other  thing,  with  the  intent  to  defraud  the  purchaser 
he  shall  be  lined  one  hundred  dollars  for  each  hogshead  or  cask 
so  nested.     Id.  sec.  183.5. 

Penalties  for  certain  violation  : 

If  any  person  violate  any  of  the  provisions  of  section  eighteen 
hundred  and  twenty  or  of  the  sections  following  to  1S26  in- 
elusive,  or  of  section  1830,  he  shall  be  fined  one  hundred  dollars, 
one  half  to  go  to  the  informer.     Id.  sec.  1836. 


790  VIRGINIA    LAWS. 

Record  to  be  kept  by  coinmaiider  of  vessel,  etc.,  for  to- 
bacco shipped : 

The  commander  of  any  boat  or  vessel  taking  on  board  of  his 
vessel  any  tobacco,  in  bulk  or  in  parcels,  otherwise  than  in 
hogsheads  or  casks,  to  be  transported  for  hire  from  one  part  of 
the  state  to  another  part  thereof,  shall  keep  a  record  of  the 
quantity  of  such  tobacco,  how  incased,  if  at  all,  and  the 
names  and  addresses  of  the  consignors  and  consignees ;  which 
record  shall  be  open  to  the  inspection  of  any  party  inter- 
ested. For  every  violation  of  this  section,  such  commander 
shall  be  lined  twenty  dollars.     Id.  sec.  1837. 

Pimishinent  for  receiving  tobacco  without  consent  of 
owner  : 

If  the  commander  of  such  boat  or  vessel,  or  other  person 
employed  thereon,  shall  knowingly,  without  the  consent  of  the 
owner,  take  any  tobacco  on  board,  or  conceal  the  fact  of  its 
being  on  board,  the  party  so  offending,  if  he  be  the  commander 
of  such  boat  or  vessel,  shall  forfeit  ten  cents  for  everj^  hundred 
pounds  weight  of  such  tobacco ;  if  he  be  a  person  other  than 
the  commander,  shall  forfeit  twenty  dollars  for  such  offense. 
All  tobacco  put  on  board  such  boat  or  vessel  ^vithout  the 
knowledge  of  the  owner  shall  be  restored  to  him.  Id.  sec. 
1838. 

Publication  of  insurance  : 

Every  proprietor  of  a  public  tobacco  warehouse  shall,  at 
least  once  a  year,  publish  in  some  newspaper  published  in  this 
state,  once  a  week  for  four  successive  weeks,  a  statement  show- 
ing the  amount  of  insurance  he  has  on  such  warehouse,  the 
companies  in  which  the  insurance  has  been  effected,  and  the 
length  of  time  the  pohcies  have  to  run.     Id.  sec.  1839. 

Reprized  packages  : 

Each  sampler  shall  keep  in  a  different  column  an  account  of 
all  reprized  packages  from  original  samples.  For  the  failure 
to  comply  with  the  provisions  of  this  section,  the  sampler  shall 
be  fined  one  hundred  dollars,  and  it  shall  be  sufficient  cause  for 
removal  from  office.     Id.  sec.  1840. 

Punishment  for  sending  tobacco  to  wrong  warehouse  : 

If  any  person  or  corporation   send  the  tobacco  of  a  planter 


vii:(;iMA.  791 

or  other  person  to  any  warehouse  other  than  that  to  which 
such  tobacco  is  marked  by  the  owner  or  his  agent,  the  person 
or  corporation  so  sending  such  tobacco  shall  be  deemed  guilty 
of  a  misdemeanor,  and,  upon  conviction  thereof,  be  fined  not 
less  than  twenty  nor  more  than  fifty  dollars  for  each  package 
so  sent.     Id.  sec.  1841. 

Sale  by  samplers  of  unclaimed  tobacco — Disposition  of 
proceeds : 

When  any  tobacco  shall  have  remained  in  any  warehouse  in 
the  city  of  Riclimond  undenianded  for  a  term  of  three  years 
from  the  time  of  its  inspection  therein,  the  inspectors  or 
samplers  for  said  warehouse  shall  advertise  in  some  newspaper 
publishetl  in  said  city  once  a  week  for  three  consecutive  weeks, 
a  list  of  marks,  numbers  and  weights  of  such  tobacco,  with  the 
names  of  the  persons  to  whom  notes  or  receipts  for  it  were 
given,  and  if  no  owner  claims  said  tobacco  and  pays  the  ac- 
crued extra  storage  thereon  within  sixty  days  after  date  of 
such  advertisement,  they  shall  sell  or  cause  the  same  to  be  sold 
on  account  of  whom  it  may  concern.  The  proceeds  of  such 
sale  shall  be  paid  into  the  treasury,  after  deducting  therefrom 
all  the  usual  charges  for  selling.  The  amounts  so  paid  into  the 
treasury  shall  be  refunded  to  the  owner  of  said  tobacco,  on 
the  return  to  the  inspectors  or  samplers  of  the  notes  or  re- 
ceipts issued  for  the  same.     Id.  sec.  18i2. 

Judges  to  charge  grand  juries  : 

The  judges  of  the  county  and  corporation  courts,  in  such 
counties  and  corporations  as  have  ])ublic  tobacco  warehouses 
therein,  shall  give  the  provisions  of  this  chapter  in  charge  to 
the  grand  juries.     Id.  sec.  1843. 

When  receipts  not  to  be  issued — Duplicate  receipts  : 

No  person  shall  issue  any  such  licensed  warehouse  or  other 
licensed  storage  receipt  unless  he  be  the  keeper  of  a  regu- 
larly licensed  warehouse  or  other  licensed  place  of  storage  in 
this  state  for  goods,  wares,  merchandise,  cotton,  grain,  flour, 
tobacco,  lumber,  iron  or  other  commodity  stored  with  such 
person  and  shall  have  duly  paid  to  the  commonwealth  the  tax 
for  such  license,  and  unless  the  propert}'"  therein  mentioned 
shall  be  actually  in  store  or  on  his  premises  and  under  his  con- 


792  VIRGINIA    LAWS. 

trol  at  the  time  of  issuing  such  receipt,  nor  shall  a  second  or 
duplicate  receipt  for  any  property  be  issued  while  a  former 
receipt  for  such  property  or  any  part  thereof  is  outstanding 
and  uncancelled  without  having  written  or  stamped  in  plain 
letters  across  the  face  of  such  second  or  duplicate  receipt  the 
word  "  duplicate  "  ;  and  the  said  duplicate  shall  express  on  its 
face  the  reason  for  the  issuance  of  the  same,  stating  whether 
the  original  receipt  was  lost,  burned,  or  stolen,  and  the  per- 
son to  whom  said  duplicate  receipt  is  issued  shall  give  to  the 
warehouse  issuing  the  same  a  bond  in  the  penalty  of  double 
the  value  of  the  article  for  which  said  original  receipt  was 
given;  and  it  shall  be  the  duty  of  such  person  keeping  such 
licensed  warehouse  or  licensed  phice  of  storage  to  cause  to  be 
posted  prominently  over  the  door  of  his  place  of  business  a 
sign  indicating  that  such  warehouse  or  place  of  storage  is  duly 
licensed  ;  and  such  person  shall  also  cause  to  be  written  or 
stamped  in  plain  letters  upon  the  bill-heads  and  envelopes  used 
by  him  in  said  business  words  indicating  that  the  warehouse  or 
place  of  storage  kept  by  him  is  duly  licensed.  Any  person 
violating  the  provisions  of  this  act  shall  be  deemed  guilty  of  a 
misdemeanor,  and  upon  conviction  fined  not  less  than  fifty 
dollars  nor  more  than  one  hundred  dolhirs  for  each  offense. 
Supplement  to  the  Code  of  Virginia,  1887-98,  sec.  1792. 

Fraiululeut  sale,  negotiation,  pledge,  or  hypothecation  of 
licensed  warehouse  or  other  licensed  storage  receipts,  and  to 
provide  punishment  in  respect  thereto  : 

Any  firm  or  person,  natural  or  artificial,  who  shall  issue  any 
licensed  warehouse  or  other  licensed  storage  receipt  for  farm 
product  in  his  own  name,  being  in  possession  of  said  farm  prod- 
uct for  or  on  account  of  another,  and  sell,  negotiate,  pledge, 
or  hypothecate  such  licensed  warehouse  or  other  licensed  storage 
receipt  and  fraudulently  fail  to  account  for  or  pay  over  to  his 
principal  or  the  owner  of  the  property  the  amount  so  received 
on  such  sale,  negotiation,  pledge,  or  hypothecation  less  the 
charges  and  amount  due  him  shall  be  deemed  guilty  of  the 
larceny  of  such  money  or  the  farm  product  of  the  receipt,  and 
upon  conviction  thereof  punished  by  confinement  in  the  pene- 
tentiary  not  less  than  one  year  nor  more  than  five  years,  and 
the  failure  to  account  for  or  pay  over  to  such  principal  or  owner 
shall  be  j^'i'itna  facie  proof  of  fraudulent  intent.     Id.  sec.  3718a. 


VIRGINIA.  793 

An  Act  to  provide  for  weighing  leaf  tobacco  in  warehouses, 
requiring  proprietors  thereof  to  furnish  itemized  statements  and 
fixing  a  penalty.     Approved,  March  6,  19U0  : 

Be  it  enacted  by  the  general  assembly  of  Virginia,  that  all 
leaf  tobacco  sold  upon  the  floor  of  any  tobacco  warehouse  in  the 
state  of  Virginia  shall  first  be  weighed  by  some  reliable  person 
who  shall  have  first  sworn  and  subscribed  to  the  following 
oath,  to  wit : 

I  do  solemnly  swear  (or  affirm)  that  I  will  correctly  and  ac- 
curately weigh  all  tobacco  offered  for  sale  at  the  warehouse  of 

,  and  correctly  test  and  keep  accurate  the  scales  upon 

which  the  tobacco  offered  for  sale  is  weighed. 

Said  oath  to  be  filed  in  the  office  of  the  clerk  of  the  county 
or  city  court  of  the  county  or  city  in  which  said  warehouse  is 
situated. 

The  proprietor  of  each  and  every  warehouse  shall  render  to 
each  seller  of  tobacco  at  his  warehouse  a  bill  plainly  stating  the 
amount  charged  for  weighing  and  handling,  the  amount  charged 
for  auction  fees,  and  the  commission  charged  on  such  sale,  or 
any  other  charges  made  for  selling  and  handling  such  tobacco. 

That  for  each  and  every  violation  of  the  provisions  of  this 
act,  a  penalty  of  ten  dollars  be  enforced,  and  the  same  may  be 
recovered  by  any  one  so  offended. 

This  act  shall  be  in  force  from  and  after  the  first  day  of  Oc- 
tober, nineteen  hundred.     Laws  of  Virginia,  1900,  chapter  901. 


794  VIRGINIA    DECISIONS. 


DECISIONS  AFFECTING  WAREHOUSEMEN. 

A. 

Bailment   and   sale — Ambiguous    receipts — Question    for    the 
jury. 

Plaintiff's  intestate  delivered  wheat  to  the  defendant  and  re- 
ceived therefor  a  i-eceipt  in  the  following  terms:  "Received, 
June  4th,  1886,  of  William  Reherd,  seven  hundred  one  and  51, 
of  No.  Two  wheat  in  store,  less  five  bushels  paid  Isaac  Bill- 
himer,  for  which  we  are  to  pay  market  price  same  quality  of 
wheat  whenever  Mr.  Reherd  wants  to  sell  same."  The  prop- 
erty was  destroyed  by  fire  and  it  was  not  alleged  that  the  de- 
fendant was  guilty  of  negligence.  Upon  demand  being  made 
of  the  defendant  for  the  value  of  the  wheat  it  was  refused  on 
the  ground  that  the  contract  was  one  of  bailment  and  not  of 
sale.  It  was  /teld  on  ajipeal  that  the  plaintiff  was  entitled  to 
have  had  the  following  instruction  given  to  the  jury  and  that 
the  court's  refusal  thereof  constituted  reversible  error :  "  If  the 
jury  believe  from  the  evidence  that  AYilliam  Reherd  in  his  life- 
time delivered  the  wheat  which  is  the  subject  of  controversy 
into  the  mill  of  the  defendants,  upon  a  contract  with  tlie  de- 
fendants, that  they,  the  defendants,  should  pay  for  the  same  in 
money  at  the  market  price  whenever  the  said  William  Reherd 
should  name  the  time  of  the  market  price  therefor,  and  that 
the  defendants  had  the  right  to  use  said  wheat  as  they  thought 
proper,  then  such  contract  was  a  salt'  of  the  wheat  and  not  a 
hailmenV     RehercTs  Admr.  v.  Clem  c§   Wenger,  86  Ya.  374. 

Same — Wheat  to  be  grour^d — Fire — Bailment. 

Where  wheat  is  delivered  at  a  mill  to  be  ground,  upon  an 
agreement  that  the  miller  shall  return  to  the  farmer  a  given 
quantity  of  flour  for  so  many  bushels  of  wheat,  the  miller  is  a 
hailee  and  not  2^  inircliaser^  and  therefore  if  the  wheat  be  con- 
sumed by  accidental  fire,  the  miller  will  not  be  responsible  for 
it.  This  conclusion  will  not  be  altered  bv  ;in  understanding: 
between  the  parties  that  the  miller  is  not  bound  to  return 
flour  made  from  that  identical  wheat,  but  flour  of  a  certain 
quality,  made  from  any  wheat  in  the  mill.  Slaughter  v.  Green 
et  al.,  1  Rand.  3. 


viKciNiA.  79;') 

L. 

Detinue — Bailee  may  maintain — Comits  in  declaration. 

A  bailee  of  chattels  ma}'  maintain  detliiKc  for  them  upon  liis 
right  of  possession  as  bailee.  Two  counts  in  a  declaratitjn  in 
(letinve.,  one  counting  on  a  right  of  i)i'oj)ei-ty  in  the  plaint  ill', 
and  the  other  on  a  right  of  possession  in  him  as  bailee:  JIdd 
no  misjoinder  of  actions.     Boyle  v.  Townes^  9  Leigh,  158. 

N. 

Loss  by  theft — When  reputation  of  bailee  not  in  question. 

Where  property  was  intrusted  to  one  and  an  action  was 
brought  against  his  administrator  by  the  bailor  for  the  recovery 
thereof,  the  defendant  ])leuded  nan  anHumpslt.  The  ))laintiff 
alleged  that  the  reputation  and  character  of  the  original  l)ailee 
was  in  issue  because  the  declaration,  being  assumpsit,  charged 
him  with  an  intent  to  deceive  and  defraud  the  plaintiff,  and  as 
the  defendant  had  failed  to  })ut  in  any  testimony  showing  that 
the  character  of  the  bailee  was  good,  the  counsel  for  the  plain- 
tiff relied  on  this  fact  as  a  significant  one  tending  to  show  tliiit 
the  character  and  reputation  of  the  bailee  was  bad.  After  ar- 
gument of  counsel  on  both  sides,  the  court,  on  its  own  motion, 
instructed  the  jury  that  the  character  of  the  bailee  was  not  in 
issue  and  that  the  jury  should  disregard  all  arguments  made 
before  them  based  on  the  failure  of  the  defendant  to  introduce 
testimony  as  to  the  bailee's  character.  On  appeal,  this  ruling 
Avas  held  correct  on  the  ground  that  in  civil  cases  evidence  of 
ofeneral  character  is  never  receivable  unless  the  nature  of  the 
action  involves  the  character  of  the  party  or  goes  directly  to 
affect  the  same.  Danville  Bank  v.  WaddilVs  Admr.,  31  Grat. 
469. 

P. 

Insurance — Warehouseman's  own  goods — Pro  rata  distribution. 

A  warehouseman  insured  the  contents  of  his  \varehouse,  in 
which  there  w^as  also  stored  some  of  his  own  goods,  against 
loss  of  fire.  It  was  held,  after  loss  had  occurred,  that  he  could 
recover  the  full  amount  of  insurance,  that  he  was  entitled  to 
pay  out  of  such  sum  all  costs,  including  the  costs  of  the  policies 
paid  either  by  himself  or  othei-  owners,  and  attorneys'  fees  in- 
curred in  the  collection  thereof  ;  and  that  the  balance  must  be 


796  VIRGINIA    DECISIONS. 

distributed ^0  ra^a  among  the  several  owners,  including  him- 
self.    Boyd^  Trustee  et  al.,  v.  McKee  et  al.,  99  Ya.  72. 

Warehouse  receipt — Whefi  ambiguous,  parol  evidence  will  he 
received. 

Where  a  warehouse  receipt  is  ambiguous  in  its  terras  and  is 
susceptible  of  explanation  tending  to  show  whether  or  not  the 
contract  was  a  sale  or  bailment,  evidence  will  be  received  to 
show  what  was  the  purpose  and  intent  of  the  parties.  Re- 
herd^s  Adrnr.  v.  Clem  cfe  Wenger,  86  Va.  374. 


WAaHLNGTON.  797 


CHAPTER  XLVII. 
WASHINGTON. 

LAWS  PERTAINING  TO    WAREHOUSEMEN. 

Bill  of  lading  or  warehouse  receipt,  what  is  : 

A  bill  of  lading  or  warehouse  receipt  is  an  instrument  in 
writing  signed  by  a  carrier,  warehouse  pn^prietor,  or  his 
agent,  describing  the  freight  so  as  to  identify  it,  stating  the 
name  of  the  consignor  or  owner,  the  terras  of  the  contract  for 
carriage  or  storage,  and  agreeing  or  directing  that  the  freight 
be  delivered  to  the  order  or  assigns  of  a  s])ecified  person  at  a 
specified  place.  Codes  &  Statutes  of  Washington  (Ballinger), 
1897,  sec.  3590. 

Above  section  construed  : 

A  receipt  signed  by  a  mill  owner  as  "  warehouseman  "  does 
not  thereby  become  a  warehouse  receipt.  SteauUi  v.  Blaine 
Nat  Bank,  11  Wash.  426. 

Warehouse  receipts  to  be  given  by  whom,  and  to  show 
what : 

It  shall  be  the  duty  of  every  person  keeping,  controlling, 
managing,  or  operating,  as  owner  or  agent  or  superintendent 
of  any  company  or  corporation,  any  warehouse,  commission 
house,  forwarding  house,  mill,  wharf,  or  other  place  where 
grain,  flour,  pork,  beef,  wool,  or  other  produce  or  commodity 
is  stored,  to  deliver  to  the  owner  of  such  grain,  flour,  i)ork, 
beef,  wool,  or  produce  or  commodity,  a  warehouse  receipt  there- 
for, bearing  the  full  name  of  those  operating  said  houses,  which 
receipt  shall  bear  the  date  of  its  issuance,  and  shall  state  from 
whom  received,  the  number  of  sacks,  if  sacked,  the  number  of 
bushels  or  pounds,  the  condition  or  quality  of  the  same,  and  the 
terms  and  conditions  upon  which  it  is  stored.  Codes  &  Stat- 
utes of  Washington  (Ballinger),  1 897,  sec.  3591. 


798  WASHINGTON    LAWS. 

General  form  of  warehouse  receipt : 

The  receipt  required  in  the  last  preceding  section  of  this 
chapter  shall  be  in  form  as  follows  : 

(Name  of  firm  or  company.) 

No (Place  and  date.) 

Received  in  store  from  (name  of  consignor),  (quantity),  gross 

lbs.,  tare, lbs.,   net, lbs.,  No (give  here 

grade  and  name  of  commodity),  at  owner's  risk  of  unavoidable 
damage,  to  be  delivered  at  this  warehouse,  upon  return  of  this 
receipt,  properly  indorsed,  and  payment  of  charges.  This  re- 
ceipt negotiable  when  duly  indorsed  by  consignor.  Storage  to 
(here  give  amount  and  date). 

Signed  (Name  of  firm  or  company.) 

(Name  of  agent).  Agent. 

Id.  sec.  3592. 

Receipts  not  to  be  given,  when— Duplicates  must  be  so 
marked  : 

No  person  shall  issue  any  receipt  or  other  voucher,  as  pro- 
vided for  in  section  3591,  for  any  grain,  flour,  wool,  pork,  beef, 
or  other  produce  or  commodity,  not  actually  in  store  at  the  time 
of  issuing  such  receipt,  or  issue  any  receipt  in  any  respect 
fraudulent  in  its  character,  either  as  to  its  date  or  the  quantity, 
quality  or  grade  of  such  property,  or  duplicate  or  issue  a  second 
receipt  for  the  same,  while  any  former  receipt  is  outstanding 
for  the  same  property,  or  any  part  thereof,  without  writing 
across  the  face  thereof  the  word  "  duplicate."     Id.  sec.  3593. 

Warehousemen  must  not  mix  grain,  etc.,  so  as  to  destroy 
identity : 

No  person  operating  any  warehouse,  commission  house,  for- 
warding house,  mill,  wharf  or  other  place  where  grain,  flour, 
pork,  beef,  wool,  or  other  produce  or  commodity  is  stored  shall 
mix  any  gi'ain,  flour,  beef,  pork,  wool,  or  other  produce  or  com- 
modity of  different  grades  together,  or  deliver  one  grade  for 
another,  or  in  any  way  tamper  with  the  same  while  in  his  pos- 
session or  custody,  with  a  view  of  securing  any  profit  to  himself 
or  any  other  person,  and  in  no  case  mix  different  grades  to- 
gether while  in  store:  Provided,  That  nothing  in  this  act  shall 
be  construed  U)  prohibit  any  person  operating  any  warehouse, 
commission  house,  forwarding  house,  mill,  wharf,  or  other  place 


WASHINGTON.  799 

where  grain,  pork,  wool,  or  other  produce  or  commodity  is 
stored  from  keeping,  filling  or  storing  any  produce  or  commodity, 
offer-ed  for  storage  separate  and  apart  from  other  produce  or 
commodity,  by  marking  such  produce  oi-  commodity  in  such  a 
manner  that  it  can  be  identified  and  delivered  on  presentation 
of  the  Avarehouse  receipt  or  voucher  which  was  given  for  same; 
in  which  case  the  receipt  given  shall  designate  the  mark  on  the 
produce  or  commodity  so  stored.     Id.  sec.  3594. 

Consent  of  receipt  holder  necessary  for  release  of  goods : 

No  person  operating  any  warehouse,  commission  house,  for- 
warding house,  mill,  wharf,  or  other  place  of  storage,  shall  sell, 
incumber,  ship,  transfer,  or  in  any  manner  remove  or  permit  to 
be  shipped,  transferred,  or  removed  from  the  place  of  storage  at 
which  the  receipt  is  given,  any  grain,  flour,  beef,  pork,  wool,  or 
other  produce  or  commodity  for  which  a  receipt  has  been  given 
by  him  as  aforesaid,  whether  received  for  storing,  shipping, 
grinding,  or  manufacturing,  or  other  purposes,  without  the  writ- 
ten consent  of  the  holder  of  the  receipt.     Id.  sec.  3595. 

Goods  must  be  delivered  on  presentation  of  receipt : 

On  the  presentation  of  the  receipt  given  by  any  person  op- 
erating any  warehouse,  commission  house,  forwarding  house, 
mill,  wharf,  or  other  place  of  storage,  for  any  grain,  flour,  beef, 
wool,  pork,  or  other  produce  or  commodity,  and  on  payment 
of  all  the  charges  due  thereon,  the  owner  shall  be  entitled  to 
the  immediate  possession  of  the  commodity  named  in  such  re- 
ceipt, and  it  shall  be  the  duty  of  such  warehouseman,  wharf- 
inger, mill  man,  or  other  person  having  the  possession  thereof, 
to  deliver  such  commodity  to  the  owner  of  such  receipt  with- 
out further  expense  to  such  owner,  and  without  unnecessary 
delay.     Id.  sec.  3596. 

Criminal  prosecutions  and  actions  for  damages  : 

Any  person  who  sliall  violate  any  of  tlie  provisions  of  this 
act  shall  be  liable  to  indictment,  and  upon  conviction  shall 
be  fined  in  any  sum  not  exceeding  five  thousand  dollars,  or  im- 
prisonment in  the  penitentiary  of  this  state  not  exceeding  five 
years,  or  both  ;  and  in  case  of  a  corporation  the  person  acting 
for  said  corporation  shall  be  liable  for  a  like  punishment  upon 
indictment  and  conviction.     And  all  and  every  person  or  per- 


800  WASHINGTON    LAWS. 

sons  aggrieved  by  a  violation  of  this  act  may  have  and  maintain 
an  action  at  law  against  the  person  or  persons,  corporation  or 
corporations,  violating  any  of  the  provisions  of  this  act,  to  re- 
cover all  damages,  immediate  or  consequential,  which  he  or  they 
may  have  sustained  by  reason  of  such  violation,  before  any 
court  of  competent  jurisdiction,  wliether  such  person  shall  have 
been  convicted  under  this  act  or  not.     Id.  sec.  3597. 

Receipts,  etc.,  declared  negotiable— Indorsement — Effect 
of: 

All  checks  or  receipts  given  by  any  person  operating  any 
warehouse,  commission  house,  forwarding  house,  mill,  wharf,  or 
other  place  of  storage,  for  any  grain,  flour,  pork,  beef,  wool,  or 
other  produce  or  commodity,  stored  or  deposited,  and  all  bills 
of  lading,  and  transportation  receipts  of  every  kind,  are  hereby 
declared  negotiable,  and  may  be  transferred  by  indorsement 
of  the  party  to  whose  order  such  check  or  receipt  was  given  or 
issued,  and  such  indorsement  shall  be  deemed  a  valid  transfer 
of  the  commodity  represented  by  such  receipt,  and  may  be 
made  either  in  blank  or  to  the  order  of  another.     Id.  sec.  3598. 

Above  section  constrned — Negotiability : 

A  statute  making  warehouse  receipts  negotiable  by  indorse- 
ment cannot  be  construed  as  making  an  indorsement  of  a  ware- 
house receipt  effective  otherwise  than  as  a  transfer  of  the  in- 
terest of  the  holder  in  and  to  the  property  represented  by  the 
receipt,      Yarwood  v.  Happy.,  18  Wash.  246. 

Same — Negotiability  of  warehouse  receipt : 

All  the  title  to  the  freight  which  the  first  holder  of  a  bill  of 
lading  or  warehouse  receipt  had,  when  he  received  it,  passes  to 
every  subsequent  indorser  thereof  in  good  faith,  and  for  value, 
in  the  ordinary  course  of  business,  with  like  effect  and  in  like 
manner  as  in  the  case  of  a  bill  of  exchange.  Codes  &  Statutes 
of  Washington  (Balhnger),  1897,  sec.  3599. 

When  drawn  to  *'  hearer,"  transferred  hy  delivery  : 

When  a  bill  of  lading  or  w^arehouse  receipt  is  made  to 
"  bearer,"  or  in  equivalent  terms,  a  simple  transfer  thereof  by 
delivery  conveys  the  same  title  as  an  indorsement.  Id. 
sec.  3600. 


WASHINGTON.  801 

Not  to  affect  certain  rij^hts  : 

A  bill  of  lading  or  warehouse  receipt  does  not  alter  the  rights 
or  obligations  of  the  carrier  or  warehouse  proprietor  as  deliiied 
in  this  chapter,  unless  it  is  plainly  inconsistent  therewith.  [<L 
sec.  3601. 

Duplicate  bills  of  lading,  etc.: 

A  carrier  or  warehouse  })r()prietor  must  subscribe  and  deliver 
to  the  consignor  on  demand  any  reasonable  number  of  bills  of 
lading  or  warehouse  receipts,  not  exceeding  three  (one  original, 
and  the  balance  marked  "  duplicate,"  and  the  original  to  state 
the  number  of  duplicates  issued),  of  the  same  tenor,  expressing 
truly  the  original  contract  for  carriage  or  storage,  and  if  he 
refuses  to  do  so,  the  consignor  may  take  the  freight  from  him, 
and  recover  from  him,  besides,  all  damages  thereby  occasioned. 
Id.  sec.  3602. 

Exoneration  of  carrier,  etc.: 

A  carrier  or  warehouse  propr'ietor  is  exonerated  from  liabil- 
ity for  freight  by  delivery  thereof,  in  good  faith,  to  any  holder 
of  an  original  bill  of  lading  or  warehouse  receipt  thereof,  prop- 
erly indorsed,  or  made  in  favor  of  the  bearer.     Id.  sec.  3603. 

Carrier  may  require  bill  or  indemnity  : 

When  a  carrier  or  warehouse  pr-oprietor  has  given  a  bill  of 
lading,  warehouse  receipt,  or  other  instrument  substantially 
equivalent  thereto,  he  may  require  its  surrender,  or  a  reason- 
able indemnity  against  claims  thereon,  before  delivering  the 
freight.     Id.  sec.  3604. 

Singular  number  to  import  plural ; 

Words  used  in  this  act  in  the  singular  number  shall  be  con- 
strued to  import  the  plural  number,  whenever  such  construction 
is  necessary  to  give  force  and  effect  to  the  provisions  of  this 
act.     Id.  sec.  3605. 

When  lien  exists : 

Whenever  property  upon  which  charges  for  advances,  freight, 
transportation,   wharfage,  or  storage,  due  and  unpaid,  and  a 
lien  sliall  remain  and  be  held  in  store  by  the  person  or  per- 
sons in  whose  favor  such  lien  exists  uncalled  for,   it  shall  be 
51 


802  WASHINGTON   LAWS. 

lawful  for  such  person  or  persons  to  cause  such  property  to  be 
sold  as  is  herein  provided.     Id.  sec.  5963. 

When  certain  property  may  be  sold  for  charges  : 

If  said  property  consists  of  live  stock,  the  maintenance  of 
which  at  the  place  where  kept  is  wasteful  and  expensive  in 
proportion  to  the  value  of  the  animals,  or  other  of  the  perisli- 
able  property  liable,  if  kept,  to  destruction,  waste,  or  great  de- 
preciation, tlie  person  or  persons  having  such  lien  may  sell  the 
sa!iie  upon  giving  ten  days'  notice.     M.  sec.  5964. 

Wbeu  other  property  may  be  sold  : 

All  olhei'  property  upon  which  such  charges  may  be  unpaid, 
due,  and  a  lien,  after  the  same  shall  have  remained  in  store  un- 
called for  for  a  period  of  thirty  days  after  such  chai'ges  shall 
have  become  due,  may  be  sold  by  the  person  or  persons  having 
a  lien  for  the  payment  of  such  charges  upon  giving  ten  days' 
notice  :  Provided.,  That  where  the  projiert}'  can  be  convenientlv 
divided  into  separate  lots  or  parcels,  no  more  lots  or  parcels 
shall  be  sold  than  shall  be  sufficient  to  pay  the  charges  due  on 
the  day  of  sale,  and  the  expenses  of  sale.     Td.  sec.  5965. 

Application  of  proceeds  of  sale  : 

The  moneys  ai'ising  from  the  sales  made  under  the  provisions 
of  this  chapter  shall  first  be  applied  to  the  payment  of  the 
costs  and  expenses  of  the  sale,  and  then  to  the  payment  of  the 
lawful  charges  of  the  ])erson  or  persons  having  a  lien  thereon 
for  advances,  freight,  transportation,  wharfage,  or  storage, 
for  whose  benefit  the  sale  shall  have  been  made ;  the  surplus, 
if  any,  shall  be  retained,  subject  to  the  future  lawful  charge  of 
the  person  or  persons  for  whose  benefit  the  sale  was  made,  upon 
the  property  of  the  same  owner  still  remaining  in  store  uncalled 
for,  if  any  thei'e  be,  and  to  the  demand  of  the  owner  of  the 
property  who  shall  have  paid  such  charges  or  otherwise  satis- 
fied such  lien,  and  all  monej^s  remaining  uncalled  for,  for  the 
period  of  three  months,  shall  be  paid  to  the  county  treasurer, 
and  shall  remain  in  his  hands  a  special  fund  for  the  benefit  of 
the  lawful  claimant  thereof.     Td.  sec.  5966. 

Special  contract  not  affected  : 

Nothing  in  this  chapter  contained  shall  be  so  construed  as 


WASHINGTON.  803 

to  alter  or  affect  the  terms  of  any  special  contract  in  writin*--, 
made  by  the  parties,  as  to  the  advances,  affreightment,  wharf- 
age, or  storage;  but  when  any  such  special  contract  shall  have 
been  made,  its  terms  shall  govern,  irrespective  of  this  chapter. 
Id.  sec.  5967. 

Notices,  how  ^iveu : 

All  notices  required  under  this  chapter  shall  be  given  as  is 
or  may  be  by  law  provided  in  cases  of  sales  of  personal  prop- 
erty upon  execution.     Id.  sec.  5968. 

Forgery  of  warehouse  receipts  : 

If  any  warehouseman,  miller,  storage,  forwarding  or  com- 
mission merchant,  or  his  or  their  servants,  agents,  or  clerks, 
shall  willfully  and  fraudulently  make  or  alter  any  receipt  or 
other  written  evidence  of  the  delivery  into  the  warehouse, 
mill,  store,  or  other  building  belonging  to  him,  them,  or  either 
of  them,  or  his  or  their  employers,  of  any  grain,  ttour,  pork, 
beef,  or  wool,  or  other  goods,  wares,  or  merchandise  which 
shall  not  have  been  so  received  or  delivered  into  such  mill, 
warehouse,  store  or  other  building  previous  to  the  making  and 
altering  such  receipt  or  other  written  evidence  thereof,  he  shall, 
upon  conviction  thereof,  be  imprisoned  in  the  penitentiary  not 
more  than  two  years,  nor  less  than  six  months,  or  imprisoned 
in  the  county  jail  for  any  length  of  time  not  exceeding  one 
year,  and  fined  in  any  sum  not  exceeding  one  thousand  dollars. 
Id.  sec.  7130. 

Uiiclainied  and  lost  property— Consignee  to  keep  record  : 

Whenever  any  personal  property  shall  be  consigned  to  or 
deposited  with  any  forwarding  merchant,  wharf,  warehouse,  or 
tavern  keeper,  or  the  keeper  of  any  depot  for  the  reception  and 
storage  of  trunks,  baggage,  merchandise,  or  other  personal 
property,  such  consignee  or  bailee  shall  immediately  cause  to 
be  entered  in  a  book  kept  by  him,  a  description  of  such  prop- 
erty, with  the  date  of  reception  thereof.     Id.  sec.  3055. 

Notice  to  owner,  how  given  : 

If  such  property  shall  not  have  been  left  with  consignee  or 
bailee,  for  the  purpose  of  being  forwarded  or  disposed  of  ac- 
cording to  directions  received  of  such  consignee  or  bailee,  at  or 


804  WASHINGTON    LAWS. 

before  the  time  of  the  reception  thereof,  and  if  the  name  and 
residence  of  the  o\yner  of  such  property  be  known  to  the  per- 
son having  such  property  in  his  possession,  he  shall  immedi- 
ately notify  tlie  owner  by  letter  directed  to  him  and  deposited 
in  a  post-office,  of  the  reception  of  such  property.    Id.  sec.  3056. 

Sale  after  one  year  if  not  claimed  : 

If  any  such  })roperty  shall  not  be  claimed  and  taken  away 
within  one  year  after  the  time  it  shall  have  been  so  received, 
the  person  having  possession  thereof  may  at  any  time  there- 
after proceed  to  sell  the  same,  in  the  manner  provided  in  this 
chapter.     Id.  sec.  3(i57. 

Notice  of  intent  to  sell — Notice  of  sale  : 

Before  any  such  property  shall  be  sold,  if  the  name  and  resi- 
dence of  the  owner  thereof  be  known,  at  least  sixty  days'  no- 
tice of  such  sale  shall  be  given  him,  either  personally  or  by 
mail,  or  by  leaving  a  notice  at  his  residence,  or  place  of  doing 
business  ;  but  if  the  name  and  residence  of  the  owner  be  not 
known,  the  person  having  the  possession  of  such  pi-opert}'  shall 
cause  a  notice  to  be  })ublished,  containing  a  description  of  the 
pro])erty,  for  the  space  of  six  weeks  successively,  in  a  news- 
pa])er,  if  there  be  one  published  in  the  same  county ;  if  there 
be  no  newspaper  published  in  the  same  county,  then  said  notice 
shall  be  published  in  a  newspaper  nearest  thereto  in  the  state ; 
the  last  publication  of  such  notice  shall  be  at  least  eighteen 
days  previous  to  the  time  of  sale.     Id.  sec.  3058. 

Procedure — Affidavit  to  be  filed  with  justice  of  the  peace  : 

If  the  owner  or  person  entitled  to  such  property  shall  not 
take  the  same  away,  and  pay  the  charges  thereon,  after  sixty 
days'  notice  shall  have  been  given,  it  shall  be  the  duty  of  the 
person  having  possession  thereof,  liis  agent  or  attorney,  to 
make  and  deliver  to  a  justice  of  the  peace  of  the  same  county 
an  affidavit,  setting  forth  a  description  of  the  property  remain- 
ing unclaimed,  the  time  of  its  reception,  the  publication  of  the 
notice,  and  whether  the  owner  of  such  property  be  known  or 
unknown.     Id.  sec.  3059. 

Justice  to  make  inventory  and  order  sale  : 

Upon  the  delivery  to  him  of  such  affidavit,  the  justice  shall 


WASHI\(;  TON.  80') 

cause  such  property  to  V)e  opened  and  examined  in  his  presence, 
and  a  true  inventory  thereof  to  be  made,  and  shall  annex  to 
such  inventory  and  order,  under  his  hand,  that  the  property 
therein  described  be  sold  by  any  constable  of  the  precinct 
where  the  same  shall  be,  at  public  auction.     Id.  sec.  3000. 

Notice  of  sale,  how  ^\s^\\ : 

it  shall  be  the  duty  of  sucli  constable  receiving  such  inven- 
tory and  order  to  give  ten  days'  notice  of  the  sale,  by  posting 
up  written  notices  thereof  in  three  or  more  places  in  such  pre- 
cinct, and  to  sell  such  property  at  public  auction  to  the  highest 
bidder,  in  the  same  manner  as  provided  by  law  for  sales  under 
execution  from  justice's  courts.     Id.  sec.  3061. 

Return  of  order  and  inventory  : 

Upon  completing  the  sale,  the  constable  making  the  same 
shall  indorse  upon  the  order  aforesaid  a  i-eturn  of  his  proceed- 
ings thereon,  and  return  the  same  to.  the  justice,  together  with 
the  inventory  and  the  proceeds  of  sale,  after  deducting  his  fees. 
Id.  sec.  3062. 

Disposition  of  proceeds  of  sale  : 

From  the  proceeds  of  such  sale,  the  justice  shall  pay  all  legal 
charges  that  have  been  incurred  in  relation  to  such  property, 
or  a  ratable  proportion  of  each  charge,  if  the  proceeds  of  said 
sale  shall  not  be  sufficient  to  pay  all  the  charges ;  and  the  bal- 
ance, if  any  there  be,  he  shall  immediately  pay  over  to  the 
treasurer  of  the  county  in  which  the  same  shall  be  sold,  and 
deliver  a  statement  therewith,  containing  a  description  of  the 
property  sold,  the  gross  amount  of  such  sale,  and  the  amount 
of  costs,  charges,  and  expenses  paid  to  each  person.  Id.  sec. 
3063. 

Duties  of  treasurer : 

The  county  treasurer  shall  make  an  entry  of  the  amount  re- 
ceived by  him,  and  the  time  when  received,  and  shall  file  in  his 
office  such  statement,  so  delivered  to  him  by  the  justice.  Id. 
sec.  3064. 

Claim  by  owner  for  proceeds  of  sale : 

If  the  owner  of  the  property  sold,  or  his  legal  representatives, 
shall,  at  any  time  within  live  years  after  such  money  shall  have 


806  WASHINGTON    LAWS. 

been  deposited  in  the  county  treasury,  furnish  satisfactory  evi- 
dence to  the  treasurer  of  the  ownership  of  such  property,  he  or 
they  shall  be  entitled  to  receive  from  such  treasurer  the  amount 
so  deposited  with  liira.     Id.  sec.  3005. 

After  live  years  to  be  applied  to  school  fuud  : 

If  the  amount  so  deposited  with  any  county  treasurer  shall 
not  be  claimed  by  the  owner  thereof,  or  his  legal  representa- 
tives, within  the  said  five  years,  the  same  shall  belong  to  the 
county,  and  shall  be  applied  to  the  common  school  fund  of  said 
county.     Id.  sec.  3066. 

Sale  of  perishable  property : 

Property  of  a  perishable  kind,  and  subject  to  decay  by  keep- 
ing, consigned  or  left  in  manner  before  mentioned,  if  not  taken 
away  within  thirty  days  after  it  shall  have  been  left,  may  be 
sold  by  giving  ten  days'  notice  thereof,  the  sale  to  be  conducted, 
and  the  proceeds  of  the  same  to  be  applied  in  the  manner  be- 
fore provided  in  this  title :  Provided.,  that  any  property  in  a 
state  of  decay,  or  that  is  manifestly  liable  immediately  to  be- 
come decayed,  may  be  summarily  sold  b}^  order  of  a  justice  of 
the  peace,  after  inspection  thereof,  as  provided  in  section  3060. 
Id.  sec.  3067. 

Note.  For  the  laws  governing  the  inspection  of  grain,  the  appointment 
of  grain  inspectors,  etc.,  see  sees.  2868  to  2909  of  Balliuger's  Codes  and 
Statutes  of  Washington,  1897. 


WASHINGTON.  807 

DECISIONS  AFFECTING  WAREHOUSEMEN. 

B. 

Wharfinger'' s  liability. 

Where  a  wharfinger  for  hire  allowed  goods  of  his  customer 
to  be  placed  upon  his  wharf  which  was  in  a  rotted  condition, 
resulting  in  the  loss  of  the  goods.  It  was  hebl  wharfingci-  was 
liable  for  value  of  the  goods  at  time  of  their  loss.  Oregon 
Imp.  Co.  V.  Seattle  Gas  Co.,  4  Wash.  634. 

M. 

Pledge — Stolen  property — -Instruction  to  jury. 

Where  goods  are  stolen  and  pledged  Avith  a  pawnbroker  the 
defendant  it  not  entitled  to  instructions  on  the  theoi'v  that  he 
had  a  right  to  rely  on  tlie  a[)pui-ent  title  of  the  pledgor. 
Rumjjf^.  Barto  et  al.,  10  Wash.  382. 

Warehouse  receipt. 

A  mere  receipt  signed  b}^  a  mill  owner  as  "warehouseman  " 
does  not  make  it  warehouseman's  receipt.  Steauhli  v.  Blaine 
Nat.  Banl;  11  Wash.  1:2(^. 

Same — Negotiah  ility. 

Warehouse  receipts  made  negotiable  by  statute  only  pass  by 
indorsement  the  interest  which  the  liolder  has  in  and  to  the 
property  represented  by  the  receipt.  Yarvjood  v.  Happy.,  18 
Wash.  246. 

Same — Negotiated  hy  pledgee — Effect. 

Where  one  holding  a  warehouse  receipt  as  security  for  a  loan, 
and  in  violation  of  the  terms  of  the  agreement,  transfers  it  to 
a  third  party  as  security,  held  that  original  pledgor  could  re- 
cover the  receipt  from  the  third  party.     Id. 


808  WEST    VIRGINIA    LAWS. 


CHAPTER  XLYIII. 
WEST  VIRGINIA. 

LAWS    PERTAINING    TO    WAKEHOUSEMEN. 

Burning  certain  buildings — Penalty  : 

If  a  person  maliciously  burn  any  meeting  house,  court  house, 
town  house,  college,  academy,  or  other  building  erected  or  used 
for  public  purposes  (except  a  jail  or  prison),  or  any  banking 
house,  warehouse^  storehouse,  manufactory  or  mill,  of  another 
person,  not  usually  occupied  by  persons  lodging  therein  at 
night,  or  if  he  maliciously  set  fire  to  anything,  by  the  burning 
whereof  any  building  mentioned  in  this  section  shall  be  burnt, 
he  shall  be  confined  in  the  penitentiary,  when  such  building 
with  the  property  therein  is  of  the  value  of  one  thousand  dol- 
lars, not  less  than  three  nor  more  than  ten  years ;  and  when  it 
is  of  less  value,  not  less  than  three  nor  more  than  five  years. 
Laws,  West  Virginia,  1899,  chapter  3. 


WKST    VIlMilNIA.  8U'.» 


DECISIONS  AFFECTING  WAREHOUSEMEN. 

A. 

Bailment — Bailee  cannot  dispute  bailor  s  title — Exceptions  to 
the  rule. 

The  general  doctr-ino  is  well  established  that,  in  ordinary 
cases,  the  bailee  cannot  dispute  liis  bailor's  title  any  more  than 
a  tenant  can  his  landlord's.  But  the  general  rule  has  numer- 
ous exceptions,  in  which  he  will  be  permitted  to  do  so  ;  as  in  a 
case  where  it  can  be  shown  that  the  latter  fraudulently  obtained 
possession  of  the  goods,  oi*  that  they  have  been  recovered  Hvom 
the  former  by  suit  or  paramount  title;  or  he  has  been  notified 
by  the  true  owner,  before  the  suit  was  instituted  by  the  bailor, 
not  to  deliver  to  his  bailor,  and  like  instances.  Kelly  v.  Patch- 
ell,  5  W.  Va.  585. 


Same — Jurisdiction  of  equity. 

In  a  sense  a  bailment  is  a  trust,  but  not  such  as  is  cognizable 
in  equit}^,  it  is  a  subject  of  common-law  jurisdiction.  Whei-e, 
therefore,  a  bill  in  equity  was  tiled  against  one  who  had  offered 
to  gratuitously  retain  the  property  in  his  possession  for  the 
complainant,  it  appearing  tliat  the  complainant  charged  the 
defendant  with  wrongful  conversion  of  the  [)ropei'ty,  the  decree 
of  the  court  dismissing  the  bill  was  affirmed  on  appeal.  T/io?np- 
son  et  al.  v.   Whitaker  Iron  Co.  et  al.,  41  W.  Ya.  574. 

Same — Statute  of  limitations — Demand  must  he  made  within 
reasonable  time. 

While  it  is  true  that  demand  must  be  made  before  action 
brought  for  an  alleged  conversion,  it  is  also  true  that  tiie  time 
within  which  such  demand  must  be  made  cannot  be  indefinitely 
prolonged,  A  creditor  cannot  keep  his  debtor  in  debt  indefi- 
nitely. What  is  a  reasonable  time  is  not  settled  by  any  pre- 
cise rule ;  it  would  seem  reason ble  to  require  that  demand  should 
be  made  within  the  time  limited  by  the  statute  for  bringing  the 
action.  The  same  reas(m  exists  for  hastening  the  demand  as 
for  hastening  the  commencement  of  action.     Id. 


810  WEST    VIHGINIA    T)l-:cl8I0NS. 

Same — Whether  an  action  he  ex  contractu  or  ex  delicto  still  one 
of  contract. 

In  general  it  is  optional  with  the  plaintiff  to  declare  against 
a  bailee  in  form  ex  contractu  for  the  breach  of  the  express  con- 
tract entered  into  by  him  or  on  the  promise  implied  from  the 
act  of  bailment ;  or,  in  tort  for  the  breach  of  the  dut}',  which 
is  by  law  impliedly  cast  on  the  bailee ;  but  it  seems,  that  in 
whatever  form  he  may  frame  his  declaration,  the  action  is  still 
one  of  contract.  Coal  Co.  v.  Bichter,  31 W.  Va.  858  ;  Moloney 
V.  Barr,  27  W.  Va.  381. 

M. 

Pledge — A  bailment — Definition. 

A  pledge  may  be  defined  to  be  a  bailment  of  goods  by  a 
debtor  to  bis  creditor,  to  be  kept  by  him  until  the  debt  is  dis- 
charged. J^trst  National  Bank  v.  Harkness  et  al.,  42  W.  Ya. 
156. 

R. 

Bills  of  lading — Effect  of  transfer — As  collateral. 

The  transfer  of  a  bill  of  lading  is  equivalent  to  the  transfer 
of  the  property  itself.  Where  a  bill  is  transferred  or  delivered 
as  collateral  security,  the  rights  of  the  pledgee  thereunder  are 
the  same  as  those  of  an  actual  purchaser  of  the  goods  re]ire- 
sented,  for  value.  Neill  &  Ellingham  v.  Rogers  Bros.  Produce 
Co.,  41  W.  Va.  37  ;  Dows  v.  Bank,  91  U.  S.  618. 


\V1«C0NSJLN.  «11 


CHAPTER  XLIX. 
WISCONSIN. 

LAWS    PERTAINING    TO    WAREHOUSEMEN. 

Duty  of  consignee  or  bailee: 

Whenever  iiiiy  personal  property  shall  be  consigned  to  or  de- 
posited with  any  common  carrier,  forwarding  merchant,  wharf- 
inger, or  warehouseman,  innkeeper  or  the  keeper  of  any  dejiot 
for  the  storage  of  baggage,  merchandise  or  other  personal  ))rop- 
erty,  such  consignee  or  bailee  shall  immediately  cause  to  be  en- 
tered in  a  proper  book  kept  by  him  a  description  of  such 
property  with  the  date  of  the  reception  tliereof ;  and  if  the 
same  shall  not  have  been  so  consigned  or  deposited  for  the 
purpose  of  being  forwarded  or  disposed  of  according  to  direc- 
tions received  by  such  consignee  or  bailee  at  or  before  his  re- 
ception thereof  he  shall  immediately  notify  the  owner  by  mail 
thereof,  if  his  name  and  residence  be  known  or  can  with 
reasonable  diligence  be  ascertained.  Revised  Statutes,  Wis- 
consin, 1898,  sec.  1637. 

Sale  of  property: 

If  any  such  ])roperty  shall  not  be  claimed  and  taken  away 
within  one  year  after  it  shall  have  been  so  received,  the  same  may 
be  sold  as  hereinafter  directed ;  but  when  such  property  shall 
be  perishable  or  subject  to  decay  by  keeping,  it  may  be  sohl  if 
not  claimed  and  taken  within  thirty  days ;  and  if  any  such 
property  be  in  a  state  of  decay  or  manifestly  liable  to  immedi- 
ate decay  it  may  be  summarily  sold  without  notice,  by  order  of 
a  justice  of  the  peace,  after  inspection,  as  provided  in  section 
1641.     Id.  sec.  1638. 

Notice  of  sale: 

Before  any  such  property,  except  as  aforesaid,  shall  be  sold 
ten  days'  notice  of  such  sale,  if  the  property  be  ]>crishable  or 
subject  to  decay  by  keeping,  and  sixty  days'  notice  in  other 


812  WISCONSIN    LAAVS. 

cases,  shall  be  given  the  owner  thereof  by  the  person  in  posses- 
sion of  such  property,  either  personally  or  by  mail  or  by  leav- 
ing a  written  notice  at  his  residence  or  place  of  business  ;  but 
if  the  name  and  residence  of  such  owner  be  not  known  and  can- 
not with  reasonable  diligence  be  ascertained  such  notice  shall 
be  given  by  publication  thereof  for  the  periods  aforesaid  I'e- 
spectively,  dating  from  the  first  publication,  at  least  once  in 
each  week,  in  a  newspaper  published  in  the  county,  if  there  be 
one  ;  and  if  there  be  none,  then  in  a  newspaper  published  in  an 
adjoining  county.     Id.  sec.  1639. 

Proceedings  if  property  not  claimed  : 

If  the  owner  or  person  entitled  to  such  property  shall  not 
take  the  same  away  and  pay  the  charges  thereon  after  notice 
as  aforesaid  shall  have  been  given  the  person  having  possession 
thereof,  his  agent  or  attorney  shall  make  and  deliver  to  a  jus- 
tice of  the  peace  of  the  same  town  an  affidavit  setting  forth  a 
description  of  the  property  remaining  unclaimed,  the  time  of 
its  reception,  the  publication  of  the  notice  and  whether  the 
owner  of  such  property  be  known  or  unknown.     Id.  sec.  1640. 

Inventory : 

Upon  the  delivery  to  him  of  such  affidavit  the  justice  shall 
cause  such  property  to  be  opened  and  examined  in  his  presence 
and  a  true  inventory  thereof  to  be  made,  and  shall  annex  to 
such  inventory  an  order  under  his  hand  that  the  property 
therein  described  be  sold  by  any  constable  of  the  city  or  town 
where  the  same  shall  be  at  public  auction.     Id.  sec.  1641. 

Notice  and  sale : 

The  constable  receiving  such  inventory  and  order  shall  give 
ten  days'  notice  of  the  sale  by  posting  up  written  notices  there- 
of in  three  or  more  public  places  in  such  city  or  town  and  sell 
such  property  at  public  auction  to  the  highest  bidder  in  the 
same  manner  as  provided  by  law  for  sales  under  execution  from 
justices'  courts.     Id.  sec.  1642. 

Return  of  sale : 

Upon  completing  the  sale  the  constable  making  the  same 
shall  indorse  upon  the  order  aforesaid  a  return  of  his  proceed- 
ings thereon  and  return  the  same  to  the  justice,  together  with 


WISCONSIN.  813 

the  inventory  and  the  proceeds  of  the  sale,  after  deducting  his 
fees.     Id.  sec.  1643. 

Justice's  duty  : 

From  the  i)roceeds  of  such  sale  the  justice  shall  pay  all  legal 
charges  that  have  been  incurred  in  relation  to  such  property, 
or  a  ratable  proportion  of  each  chai-ge  if  the  proceeds  of  such 
sale  shall  not  be  suflScient  to  pay  all  the  charges  ;  and  the 
balance,  if  any  there  be,  he  shall  immediately  [)ay  over  to  the 
treasurer  of  his  county  and  deliver  a  statement  therewith  con- 
taining a  description  of  the  property  sold,  the  gross  amount  of 
such  sale  and  the  amount  of  costs,  charges  and  expenses  ])aid 
to  each  person.  The  county  treasurer  shall  lilesuch  statement, 
give  a  receipt  for  the  money,  and  properly  enter  in  his  books 
the  amount  thereof  and  the  date.     Id.  sec.  1644. 

Disposition  of  proceeds  : 

If  tlje  owner  of  the  property  sold,  or  his  legal  representatives 
shall,  at  any  time  within  five  years  after  such  money  shall  have 
been  deposited  in  the  county  treasury,  furnish  satisfactory  evi- 
dence to  the  treasurer  of  the  ownership  of  such  property,  he  or 
they  shall  be  entitled  to  receive  from  such  treasurer  the  amount 
so  deposited  with  him.  If  not  claimed  within  said  time  by  the 
owner  or  his  legal  representatives  the  same  shall  belong  to  the 
county.     Id.  sec.  1645. 

Officers'  fees : 

Tlie  fees  allowed  to  any  justice  of  the  peace  under  this  chap- 
ter shall  be  one  dollar  for  each  day's  service,  and  to  any  con- 
stable the  same  fees  as  are  allowed  by  law  for  sales  upon  exe- 
cution, and  ten  cents  per  folio  for  making  an  inventory  of  prop 
erty.     Id.  sec.  1646. 

Warehouse  receipts : 

Every  warehouse  receipt  on  which  the  words  "  not  negotia- 
ble" shall  not  be  written  or  stamped  upon  the  face  thereof 
shall  be  deemed  negotiable  as  aforesaid.  The  instruments  men- 
tioned IS  section  4425  shall  be  negotiable  as  therein  provided. 
Id.  sec.  1()76. 

Instruments  signed  by  agents  : 

Every  note,  certificate  or  warehouse  receipt  signed  by  the 


814  WISCONSIN    LAWS. 

agent  or  any  person,  under  a  general  or  special  authority,  shall 
bind  such  person  and  have  the  same  effect  and  be  negotiable  as 
provided  in  the  two  preceding  sections.     Id.  sec.  1677. 

Actions : 

The  payees  and  indorsees  of  every  such  note,  certificate  or 
warehouse  receipt  payable  to  them  or  their  order  and  the  hold- 
ers of  every  such  note  or  receipt  payable  to  bearer  may  main- 
tain actions  for  the  sums  of  money  or  things  therein  mentioned 
m  like  manner,  as  in  cases  of  inland  bills  of  exchange  and  not 
otherwise.     Id.  sec.  1678. 

Couiiection  with  tracks  : 

The  owner  of  any  elevator,  warehouse,  mill,  lumber,  coal  or 
wood  yard  within  the  yard  limits  of  any  station  or  terminus 
of  any  railroad  may,  at  his  own  expense,  construct  a  railroad 
track  from  such  elevator,  warehouse,  mill  or  yard  to  such  rail- 
road and  connect  with  the  same  by  a  switch  at  a  point  within 
the  yard  limits  of  such  station  or  terminus,  and  the  railroad 
corporation  shall  allow  such  connection.  Such  side  track  and 
switch  shall  at  all  times  be  under  the  control  and  management 
of  and  be  kept  in  repair  and  operated  for  the  benefit  of  such 
owner  or  his  assigns  by  such  corporation ;  but  the  actual  cost 
of  so  maintaining  and  operating  the  same  shall  be  paid  monthly 
by  the  owner  thereof ;  and  in  case  of  his  neglect  to  so  pay  the 
same  upon  demand  the  obligation  of  this  section  upon  any  such 
corporation  shall  cease  until  such  payment  be  made  in  full. 
And  no  such  railroad  track  constructed  before  the  eleventh  day 
of  May,  1891,  shall  be  removed  without  first  giving  the  parties 
owning  such  elevator,  warehouse,  mill  or  yard  six  months' 
notice  of  such  removal.     Id.  sec.  1802. 

Above  section  construed— Plaintiff  must  shoAv  ownership 
or  who  constructed  spur  track  before  being  entitled  to  bene- 
fits of  the  above  : 

The  plaintiff,  a  warehouseman,  brought  an  action  against 
the  defendant  railroad  company  attempting  to  compel  the 
latter  to  operate  a  certain  spur  or  track  in  front  of  the  plain- 
tiff's warehouse  and  to  receive  his  goods  from  such  spur.  A 
demurrer  was  filed  to  the  complaint  and  it  was  held  on  appeal 
that  since  the  complaint  did  not  show  either  who  constructed 


WISCONSIN'.  M].") 

the  spur  or  who  owned  it,  that  it  failed  to  show  a  case  wiiliiii 
the  statute.  There  was  nothing  in  evidence  to  show  that  the 
spur  in  question  had  not  been  constructed  by  the  raih'oad  at  its 
own  expense.  The  evidence  also  tailed  to  show  any  considera- 
tion which  would  support  an  agreement  between  the  parties 
under  which  the  I'ailroad  would  be  obliged  to  opei-ate  the  track 
for  the  benefit  of  the  plaintilf.  Bartlett  v.  Ckicayo  cfe  N.  liy. 
Co.,  96  Wis.  335. 

Of  factors,  brokers,  etc.,  for  advances,  etc.  : 

Every  factor,  broker  or  other  agent  intrusted  by  the  owner 
with  the  possession  of  any  bill  of  lading,  custom-house  permit, 
warehouse  receipt  or  other  evidence  of  tlie  title  to  personal 
property,  or  with  the  possession  of  personal  [)ro|)erty  for  the 
purpose  of  sale  or  as  security  for  any  advances  made  or  lia- 
bility by  him  incurred  in  reference  to  such  pro[)erty,  shall  have 
a  lien  upon  such  personal  property  for  all  such  advances,  lia- 
bility incurred  or  commissions  or  other  moneys  due  him  for 
services  as  such  factor,  broker  or  agent,  and  may  retain  the 
possession  of  such  property  until  such  advances,  commissions 
or  moneys  are  paid  or  such  liability  is  discharged.  Kevised 
Statutes,  Wisconsin,  1898,  sec.  3346. 

How  such  liens  enforced  : 

Every  person  having  a  lien  given  by  either  of  the  four  last 
sections  or  existing  in  favor  of  any  bailee  for  hire,  carrier, 
warehouseman  or  pawnee  or  otherwise,  by  the  common  law, 
may,  in  case  such  debt  remain  unpaid  for  three  months  and  the 
value  of  the  property  affected  thereby  does  not  exceed  one 
hundred  dollars,  sell  such  ])roperty  at  public  auction  and  ai>ply 
the  proceeds  of  such  sale  to  the  payment  of  the  amount  due 
him  and  the  expenses  of  such  sale.  Notice,  in  writing,  of  the 
time  and  place  of  such  sale  and  of  the  amount  claimed  to  be 
due  shall  be  given  to  the  owner  of  such  property  pei-sonally, 
or  by  leaving  the  same  at  his  place  of  abode,  if  a  resident  of 
this  state,  and  if  not,  by  publication  thereof  once  in  each  week, 
for  three  weeks  successively,  next  before  the  time  of  sale  in 
some  newspaper  published  in  the  county  in  which  such  lien  ac- 
crues, if  there  be  one,  and  if  not,  by  posting  such  notice  in  three 
public  places  in  such  county.  If  such  property  exceed  in  value 
one  hundred  dollars,  then  such  lien  may  be  enforced  against 


816  WISCONSLS    LAWS. 

the  same  by    action   in   any   court   having   jurisdiction.     Id. 
sec.  3347. 

Traust'eree  of  warehouse  receipt,  etc.,  deeined  owner  : 

Warehouse  receipts,  bills  of  lading  or  railroad  receipts  given 
for  any  goods,  wares,  merchandise,  lumber,  timber,  grain,  flour 
or  other  produce  or  commodity  stored,  shipped  or  deposited 
with  any  warehouseman,  wharlinger,  vessel,  boat  or  railroad 
company  or  other  person  on  the  face  of  which  shall  not  be 
plainly  written  the  words  ''not  negotiable"  may  be  transferred 
by  delivery  with  or  without  indorsement  thereof ;  and  any  ])er- 
son  to  wdiom  the  same  may  be  so  transferred  shall  be  deemed 
and  taken  to  be  the  owner  of  the  goods,  wares  and  merchandise 
therein  specified  so  far  as  to  give  v^alidity  to  any  pledge,  lien  or 
transfer  made  or  created  by  such  person  or  persons ;  but  no 
such  property  shall  be  delivered  except  on  surrender  and  can- 
cellation of  said  original  receipt  or  bill  of  lading  or  the  indorse- 
ment of  such  delivery  thereon  in  case  of  partial  delivery.  Id. 
sec.  4194. 

Peualty  for  biiruiiig  buildiug  : 

Any  person  wIk^.  shall  willfully  and  maliciously  burn,  in  the 
night-time,  any  meeting-house,  church,  court-house,  town-house, 
college,  academy,  jail  or  other  building  erected  for  public  uses, 
or  any  ship,  steamboat  or  other  vessel,  or  any  banking  house, 
warehouse,  store,  manufactory  or  mill  of  another,  or  of  which 
he  is  lessee  or  tenant,  or  any  barn,  stable,  shop  or  office  of  an- 
other, or  of  which  he  is  lessee  or  tenant,  within  the  curtilage 
of  any  dwelling-house  or  other  building,  by  the  burning  whereof 
any  building  mentioned  in  this  section  shall  be  burnt  in  the 
night-time,  shall  be  punished  by  imprisonment  in  the  state  prison 
not  more  than  fifteen  years  nor  less  than  five  years ;  but  if  such 
offense  was  committed  in  the  day-time  the  person  guilty  thereof 
shall  be  punished  by  imprisonment  in  the  state  prison  not  more 
than  eight  years  nor  less  than  four  years.     Id.  sec.  4401. 

Burning  other  buildings  : 

Any  person  who  shall  willfully  and  maliciously  burn,  either 
in  the  night-time  or  day-time,  any  building  whatsoever  of  an- 
other, or  of  which  he  is  lessee  or  tenant,  other  than  is  mentioned 
in  the  last  preceding  section,  or  any  bridge,  lock,  dam  or  flume. 


WISCONSIN.  817 

shall  be  punished  by  imprisonment  in  the  state  prison  nol  more 
than  eight  years  nor  less  than  four  years.     /<L  sec.  -1402. 

Biirniiig  property  to  injure  insurer  : 

Any  person  who  shall  willt'iilly  burn  any  buiklinfr  or  any 
goods,  wares,  merchandise  or  other  chattels,  wliicii  siiall  he  at 
the  time  insured  against  loss  or  damage  by  tire,  with  intent  to 
injure  the  insurer,  whether  such  person  Ua  the  owner  of  the 
proj)erty  or  not,  shall  be  punished  by  imprisonment  in  the  state 
prison  not  more  than  ten  years  nor  less  than  three  years.  Id. 
sec.  4405. 

Breaking  office,  car,  etc.,  for  felonious  purpose  : 

Any  person  who  shall  break  and  enter,  in  the  night-time, 
any  office,  shop  or  Avarehouse  or  any  other  building,  not  adjoin- 
ing or  occupied  with  any  dwelling-house,  or  any  ship,  steam- 
boat, vessel,  railroad  freight  car  or  passenger  car,  with  intent 
to  commit  the  crime  of  murder,  rape,  robbery,  larceny  or  other 
felony,  shall  l)e  punished  by  imprisonment  in  the  state  i)rison 
not  more  than  live  nor  less  than  one  year.     Id.  sec.  44u9. 

Entry  at  night,  breaking  at  day  : 

Any  person  who  shall  enter  in  the  night-time,  without  break- 
ing, or  shall  break  and  enter  in  the  day-time  any  dwelling-house 
or  any  out-house,  thereto  adjoining  and  occupied  thereAvith,  or 
any  office,  shop  or  warehouse  or  other  building,  or  any  ship, 
steamboat  or  vessel,  railroad  freight  car  or  passenger  car,  witli 
the  intent  to  commit  the  crime  of  murder,  rajie,  robbery,  lar- 
ceny or  other  felony  shall  be  punished  by  imprisonment  in  the 
state  prison  not  more  than  three  yeai's  nor  less  than  one  year, 
or  by  imprisonment  in  the  county  jail  not  more  than  one  year 
nor  less  than  six  months.     Id.  sec.  4410. 

Unlawful  entry : 

Any  unlawful  entry  of  a  dwelling-house  or  other  building 
with  intent  to  commit  a  felony  shall  be  deemed  a  In-eaking  and 
entering  of  such  dwelling-house  or  other  building  within  the 
meaning  of  the  last  four  sections.     Id.  sec.  44 11. 

Larceny  and  receiving  stolen  goods  from  huildiuirs,  cars, 
etc. : 

Aiiv  person  who  shall    break  and  enter,  at  any   time,  any 
52 


818  WISCONSIN    LAWS. 

meeting-house,  church,  court-house,  town-house,  college,  acad- 
emy or  other  building  erected  and  eyiploved  for  public  use  and 
steal  therein  the  money  or  property  of  another,  or  shall  commit 
the  crime  of  larency  in  any  dwelling-house,  office,  shop,  bank, 
warehouse  or  other  building,  ship,  steamboat,  vessel,  railroad 
freight  car  or  passenger  car  by  stealing  therein  the  money  or 
property  of  another,  if  the  money  or  property  so  stolen  shall 
exceed  the  value  of  twenty  dollars,  shall  be  punished  by  im- 
prisonment in  the  state  prison  not  more  than  three  years  nor 
less  than  one  year,  or  by  imprisonment  in  the  county  jail  not 
more  than  one  year  nor  less  than  six  months  or  by  fine  not 
exceeding  two  hundred  dollars  ;  and  if  the  money  or  property 
so  stolen  shall  not  exceed  the  value  of  twenty  dollars  he  shall 
be  punished  by  imprisonment  in  the  county  jail  not  more  than 
six  months  or  by  a  fine  not  exceeding  one  hundred  dollars. 
Id.  sec.  4412. 

Embezzlement  by  officers,  carriers,  agents,  attorneys,  etc. : 

Any  officer,  agent,  clerk,  employee  or  servant  of  this  state 
or  of  any  county,  town,  school  district,  city,  village  or  other 
niunicipal  corporation  therein,  or  of  any  banking,  railroad,  in- 
surance or  telegraph  company  or  other  corporation,  or  of  any 
joint-stock  company  or  association,  or  in  the  service  or  employ- 
ment thereof,  who,  by  virtue  of  such  office  or  employment, 
shall  have  the  possession  or  custody  of,  or  shall  be  intrusted 
with,  the  safe-keeping,  disbursement,  investment  or  payment 
of  any  money  or  fund,  or  with  the  safe-keeping,  sale,  carrying 
or  delivering  of  any  goods,  wares,  merchandise,  ])roduce,  lumber 
or  any  other  property  or  thing  which  is  the  subject  of  larcenv, 
belonging  to  or  under  the  care  or  control  of  the  state,  or  such 
municipal  or  other  corporation,  or  in  which  the  state  or  such 
corporation,  has  an  interest,  or  any  factoi",  carrier,  warehouse- 
man, storage,  forwarding  or  commission  merchant,  or  any  bailee, 
executor,  administrator,  guardian,  or  any  trustee,  agent,  clerk, 
attorney,  messenger,  employee  or  servant  of  any  private  })er- 
son,  corporation,  copartnership  or  association,  except  appren- 
tices and  other  persons  under  the  age  of  sixteen  years,  who,  by 
virtue  of  his  business  or  employment,  shall  have  the  care,  cus- 
tody or  possession  of  or  shall  be  intrusted  with  the  safe-keeping, 
disbursement,  investment  or  payment  of  an}'  mone}',  or  shall 
have  the  care,  custody  or  possession  of  or  shall  be  intrusted 


WISCONSIN.  819 

with  the  safe-keeping,  carrying,  sale  or  delivery  »>f  any  goods, 
wares,  merchandise,  produce,  lumljei-  or  ;iny  other  property  (jr 
thing  which  is  the  subject  of  larceny,  Ix'longing  to  such  other 
person,  corporation,  copartnership  or  associatiijn,  shall  em- 
bezzle or  frau(hdently  convert  to  his  own  use  or  to  the  use  of 
any  other  person  except  the  owner  thereof,  or  sliall  take,  carry 
away  or  secrete,  with  intent  to  convert  to  his  own  use  or  to  the 
use  of  any  other  person  except  the  owner  thereof  any  such 
money,  fund,  goods,  wares,  merchandise,  ])roduce,  lumber  or 
or  any  other  propert}'  or  thing  shall  be  [)unislied,  if  the  money 
or  property  so  embezzled  shall  exceed  the  value  of  one  hundred 
dollars,  by  imprisonment  in  the  state  prison  not  more  than  live 
years  nor  less  than  one  year,  and  if  the  money  or  property  so 
embezzled  shall  not  exceed  the  value  of  one  hundred  dol- 
lars and  shall  exceed  the  value  of  twenty  dollars,  by  im- 
prisonment in  the  state  prison  or  county  jail  not  more  than  one 
year  nor  less  than  six  months,  or  by  line  not  exceeding  two 
hundred  dollars,  and  if  the  money  or  property  so  embezzled 
shall  not  exceed  the  value  of  twenty  dollars,  by  imprisonment 
in  the  county  jail  not  more  than  six  months  or  by  a  fine  not 
exceeding  one  hundred  dollars.  Any  person  who  is  a  member 
of  any  copartnership  or  one  of  two  or  more  beneficial  owners 
of  any  property  specified  in  this  section  or  of  any  prop- 
erty or  thing  which  is  the  subject  of  larceny,  who  shall 
embezzle  or  fraudulently  convert  to  his  own  use  or  to  the  use 
of  any  other  person,  except  the  other  members  of  such  copart- 
nership or  the  other  beneficial  owners  of  such  property  or 
thinof,  or  who  shall  take,  carrv  awav,  or  secrete  with  intent  to 
convert  to  his  own  use  oi-  to  the  use  of  any  other  ])ei-son  except  as 
aforesaid,  any  such  property  or  thing. shall  l>e  pnnisiied  as  pro- 
vided in  this  section  the  same  as  if  he  had  not  been  oi-  was  not 
a  member  of  such  copartnership  or  one  of  such  beneficial  owners. 
The  ofi"ense  of  embezzlement  may  be  prosecuted  and  punished 
in  any  county  in  which  the  person  charged  had  possession  of 
the  property  or  thing  alleged  to  have  been  embezzled.  Id. 
sec.  4418. 

False  receipts  by  warehouseman,  railroad  officer,  etc.  : 

Any  warehouseman,  wharfinger,  master  of  a  vessel  oi-  boat, 
oi-  anv  officer,  agent  or  clerk  of  any  i-ailroad.  express  or  trans- 
portation company  who  shall  issu(^  any  receipt,  bill  of  lading, 


820  WISCONSIN    LAWS. 

voucher  or  other  document  to  any  person  purporting  to  be  the 
owner  thereof  or  as  security  for  any  loan  or  indebtedness  for 
any  goods,  wares,  merchandise,  lumber,  timber,  grain,  flour,  or 
other  ])roperty,  produce  or  commodity  unless  at  the  time  of  is- 
suing the  same  such  property  shall  have  been  actually  received 
or  shipped  according  to  the  terms  and  meaning  of  such  receipt, 
bill  of  lading,  voucher  or  other  document  so  issued,  or  who  shall 
sell  or  incumber,  ship,  transfer  or  in  any  manner  remove  beyond 
his  immediate  control  anv  such  property  so  received,  contrary 
to  the  terms  and  meaning  of  such  receipt,  bill  of  lading,  voucher 
or  other  document,  without  the  consent  of  the  holder  thereof, 
or  who  shall  deliver  any  sucli  property  or  any  part  thereof,  ex- 
cept to  the  person  holding  such  receipt,  bill  of  lading,  voucher 
or  other  document  and  upon  the  surrender  and  cancellation 
thereof,  or  in  case  of  any  partial  delivery  of  such  property,  up- 
on the  indorsement  thereon  of  such  partial  delivery,  unless  re- 
quired by  legal  process,  or  shall  issue  any  second  or  duplicate 
receipt  oi"  bill  of  lading  for  any  such  property  while  any  former 
receipt  or  bill  of  lading  for  any  such  property,  or  any  part 
thereof  shall  be  outstanding  and  uncancelled,  without  writing 
across  the  face  thereof  the  word  "  duplicate,"  shall  be  punished 
by  imprisonment  in  the  state  prison  not  more  than  three  years 
nor  less  than  one  year,  or  by  imprisonment  in  the  county  jail 
not  more  than  one  year  or  by  fine  not  exceeding  one  thousand 
dollars.     Id.  sec.  4424. 

Receipts,  bills  of  lading,  etc.,  negotiability  of  holder  of 
warehouse  receipts  protected — Negotiability  of  receipts  de- 
fined : 

Any  such  receipt,  bill  of  lading,  voucher  or  other  document 
as  is  mentioned  in  the  preceding  section  shall  be  transferable 
by  delivery  thereof  without  indorsement  or  assignment,  and 
any  person  to  whom  the  same  is  so  transferred  shall  be  deemed 
and  taken  to  be  the  owner  of  the  property  therein  specified  so 
far  as  to  give  validity  to  any  pledge,  lien  or  transfer  made  or 
created  by  such  person  unless  such  receipt,  bill  of  lading, 
voucher  or  other  document  shall  have  the  words  "  not  neo:otia- 
ble"  plainly  written  or  stamped  on  the  face  thereof.  And  any 
warehouse  receipt  issued  by  any  person  or  persons  keeping, 
running  and  managing  ;i  ]>ublic  warehouse,  on  goods,  wares  or 
merchandise  owned  by  him  or  them,  and  which  he  or  they 


WISCONSIN.  821 

have,  at  the  time  of  issuing  such  warehouse  receipt,  actually 
stored  in  the  said  warehouse,  siiall  have  the  same  force  and  ef- 
fect to  protect  the  owner  and  hold(.>r  thereof  on  any  loan  or 
advance  of  money  he  may  have  made  on  tlu^  same,  as  a  ware- 
house receipt  by  the  keeper  and  managei-  of  a  ])ublic  ware- 
liouse  to  any  other  person  who  brings  goods,  wares  (^r  mer- 
chandise to  be  stored  in  such  public  wareliouse.  Id.  sec.  4-i25 
as  amended  by  ch.  146,  Laws,  1899. 

An  act  to  regulate  the  issuing  of  warehouse  certificates  in 
certain  cases. 

Who  may  issue  certificates  and  what  they  must  contain  : 

All  persons,  lirms  or  cc^rporatiuns  owning  or  dealing  in 
grains,  seeds  or  other  farm  products,  or  engaged  iji  the  busi- 
ness of  slaughtering  cattle,  sheep  or  hogs,  and  dealing  in  the 
vai'ious  products  therefrom,  or  buying  or  selling  butter,  eggs, 
cheese,  dressed  poultry  or  other  similar  commodities,  who  own 
or  control  tlie  structures  wherein  any  such  business  is  con- 
ducted, or  such  commodities  stored,  may  issue  elevator  or  ware- 
house certificates  or  receipts  for  any  such  commodities  actually 
on  hand  and  in  store,  the  property  of  such  person,  firm  or  cor- 
poration, and  may,  by  the  issue  of  such  certificates,  sell,  assign, 
incumber  or  pledge  such  commodities.  Such  certificate  or  re- 
ceipt shall  contain  the  date  of  its  issue,  the  name  and  address 
of  the  person,  firm  or  corporation  issuing  the  same,  and  the 
name  and  address  of  the  party  to  whom  issued,  the  location  of 
the  elevator,  warehouse  or  structure  wherein  the  commodity 
therein  desrcibed  is  stored,  the  quantity  of  each  commodity 
mentioned  therein,  the  brands  or  marks  of  identification 
thereon,  if  any,  and  shall  be  signed  by  the  person,  firm  or  cor- 
poration issuing  the  same.     Laws  of  1899,  ch.  251,  sec.  1. 

Declaration  of  business,  etc.,  to  be  filed  with  register  of 
deeds : 

Before  any  such  person,  firm  or  corporation,  except  as  here- 
inafter provided,  shall  be  authorized  to  issue  such  elevator  or 
Avarehouse  certificates  or  receipts,  he  or  it,  as  the  case  may  be, 
shall  file  in  the  office  of  the  register  of  deeds  of  the  county 
wherein  such  elevator,  warehouse  or  other  structure  is  situated, 
a  written  declaration  which  shall  contain  the  name  and  place 


822  WISCONSIN   LAWS. 

of  residence  or  location  of  such  person,  firm  or  corporation, 
and  sball  state  that  lie  or  it  designs  keeping  or  controlling  an 
elevator,  warehouse  or  other  sti-ucture  for  the  storage  and  sale 
of  commodities  mentioned  in  the  preceding  section,  and  shall 
contain  an  accurate  description  of  such  elevator,  warehouse  or 
other  structure,  the  location  thereof,  and  tlie  name  or  names  of 
any  person,  other  than  the  one  making  such  declaration,  who 
has  any  interest  in  such  elevator,  warehouse  or  structure,  or  in 
the  land  upon  which  it  is  situated.  Such  declaration  shall  be 
signed  and  acknowledged  by  the  party  making  the  same,  be- 
fore some  officer  authorized  to  take  acknowledgments  of  deeds, 
and  shall  be  recorded  in  the  office  of  the  register  of  deeds  for 
said  county.     Id.  sec.  2. 

Certificates  to  contain  record  of  recording  before  it 
conveys  title : 

Each  certificate  or  receipt  issued  by  any  such  person,  firm 
or  corporation,  under  the  provisions  of  this  act,  shall  have 
printed  on  the  back  thereof  a  statement  that  tlie  party  issuing 
the  same  has  complied  with  the  requirements  of  section  2  of 
this  act,  giving  the  book,  page  and  name  of  the  county  Avhere 
the  record  of  such  declaration  may  be  found.  When  such  cer- 
tificate or  receipt  is  so  issued  and  delivered,  it  shall  have  the 
effect  of  transferring  to  the  holder  thereof  the  title  to  the  com- 
modities therein  described  or  enumerated,  and  shall  thereafter 
be  assignable  and  transferable  by  delivery,  and  such  delivery 
shall  transfer  to  any  hona  fide  holder  in  due  course,  the  title 
to  the  commodities  therein  described  or  enumerated,  against  all 
persons  claiming  title  subsequent  to  the  issuing  and  deliver}''  of 
such  certificate  or  receipt.     Id.  sec.  3. 

Certificates  to  be  registered  by  issuing  party  : 

All  certificates  or  receipts  given  under  the  provisions  of  this 
chapter  shall  be  registered  by  the  party  issuing  them  in  a  book 
kept  for  that  purpose,  shownng  the  date  tliereof,  the  number 
of  each,  the  name  of  the  party  to  whom  issued,  the  quantities 
and  kinds  of  commodities  enumerated  therein,  and  the  brands 
or  other  distinguishing  marks  thereon,  if  any,  Avhich  book  shall 
be  open  to  the  inspection  of  any  person  holding  any  of  the  cer- 
tificates or  receipts  that  may  be  outstanding  and  in  force,  or  his 
agent  or  attorney,  and  when  any  commodity  enumerated  in 


WISCONSIN.  828 

any  such  certificate  is  delivered  to  the  hohh'r  thereof  oi-  it  in 
any  other  manner  becomes  inoperative,  the  fact  and  date  of  such 
delivery  or  otlier  termination  of  such  liability  shall  be  entered 
in  such  register,  in  connection  with  the  original  entry  of  the 
issuance  thereof.     Id.  sec.  4. 

Property  to  be  in  warehouse  before  certitlcate  is  issued  : 

No  person,  lirm  or  corporation  shall  issue  any  elevator  or 
warehouse  certificates  or  receipts  for  any  of  the  commodities 
mentioned  in  this  chaj)ter,  unless  such  property  is  actually  in 
the  elevator  or  warehouse,  or  structure  mentioned  therein  as 
the  place  where  such  commodity  is  stored,  and  it  shall  remain 
there  until  otherwise  ordered  by  the  lawful  holder  of  such  cei-- 
tificate  or  receipt,  subject  only  to  the  lien  of  the  warehouse- 
man thereon  and  his  right  to  enforce  the  same.  No  second 
certificate  or  receipt  shall  be  issued  for  the  same  ])roi)erty,  or 
any  part  thereof,  while  any  other  or  prior  certificate  is  out- 
standing and  in  force,  nor  shall  any  such  commodities  be  sold, 
incumbered,  transferred  or  removed  from  such  elevator,  ware- 
house or  other  structure  wherein  the  same  was  stored  at  the 
time  such  certificate  or  receipt  was  issued  by  the  warehouse- 
man or  any  agent  or  employee  thereof,  without  the  written 
consent  of  the  holder  thereof  indorsed  thereon.     Id.  sec.  5. 

Damages  may  be  recovered  : 

Any  one  injured  b}^  the  violation  of  any  of  the  provisions 
of  this  chapter,  may  recover  his  actual  damages  sustained  on 
account  tliereof,  and  if  willfully  done,  in  addition  thereto  ex- 
emplary damages  in  any  sum  not  exceeding  double  the  actual 
damages.     Id.  sec.  6. 

Penalty  for  destroying  certificate  : 

Any  person  who  shall  willfully  alter  or  destroy  any  register 
or  certilicate  or  receipt  provided  for  in  this  chapter,  or  issue 
any  receipt  or  certificate  without  entering  or  preserving  in 
such  book  the  registered  memorandum  ;  or  who  shall  know- 
ingly issue  any  certificate  or  receipt  herein  provided  for,  when 
the  commodity  or  commodities  therein  enumerated  are  not  in 
fact  in  the  building  or  buildings  it  is  certified  they  are  in  ;  or 
shall,  with  intent  to  defraud,  issue  a  second  or  other  certificate 
for  any  such  commodity,  for  which,  or  for  any  part  of  which. 


824  WISCONSIN   LAWS. 

a  former  valid  certificate  or  receipt  is  outstanding  and  in  force  ; 
or  shall  while  any  valid  certificate  or  receipt  for  any  part  of 
the  commodities  mentioned  in  this  chapter  is  outstanding  and 
in  force,  sell,  incumber,  ship,  transfer  or  remove  from  the  ele- 
vator, warehouse  or  building  where  the  same  is  stored,  any 
such  certified  property,  or  knowingly  permit  the  same  to  be 
done,  Avithout  the  written  consent  of  the  holder  of  such  certif- 
icate or  receipt,  or  if  any  person  knowingly  receives  any  such 
property  or  helps  to  remove  the  same,  he  shall,  upon  convic- 
ti(m,  be  punished  by  fine  not  exceeding  ten  thousand  dofiars, 
or  b}"  imprisonment  in  the  state  prison  not  exceeding  five  years. 
Id.  sec.  7. 

Mingling  of  grains  of  equal  grade  allowed  : 

Nothing  in  this  act  shall  be  construetl  as  prohibiting  or  pre- 
venting warehousemen  from  mingling  in  common  bins,  grains 
or  seeds  of  the  same  grade,  and  issuing  certificates  or  receipts 
therefor,  and  drawing  out  and  shipping  said  grain  and  seeds 
from  said  bins,  provided  that  a  sufficient  quantity  of  such  grain 
or  seeds  shall  be  retained  and  ke]it  in  saitl  bins  to  represent 
and  satisfy  all  outstanding  receipts  or  certificates.     Id.  sec.  8. 

Nothing  in  this  act  shall  be  construed  to  affect,  interfere  with 
or  impair  any  right  of  issuing  and  negotiating  Avareliouse  re- 
ceipts or  certificates  under  any  existing  law,  or  under  any  reg- 
ulations of  any  chamber  of  commerce  or  board  of  ti-ade  within 
this  state.     Id.  sec.  9. 

This  act  shall  take  effect  and  be  in  force,  from  and  after  its 
passage  and  publication.  A])proved  April  26,  1899.  Id. 
sec.  10. 

Note.  Corporations  may  be  organized  for  the  purpose  of  conducting 
a  warehouse  business,  under  chapter  86,  Kevised  Statutes  of  Wisconsin, 
1898. 


WISCONSIN.  825 


DECISIONS  AFFECTING  WAREHOUSEMEN. 

A. 

Bailment — When  property  belongs  to  another,  bailee  may  re- 
fuse to  deliver  to  his  bailor — Express  company — Real  owner  may 
recover  prior  to  delivery  to  consignee. 

Where  property  was  delivered  to  an  exi)re.ss  coiiipaiiv  for 
carriage  and  delivery,  and  the  consignor  was  not  the  ti'iie  owner 
thereof,  it  was  held,  that  while  the  general  principle  is  true 
that  it  is  the  duty  of  such  a  company  to  deliver  property 
personally  to  the  consignee  and  that  it  would  be  liable  in 
case  of  wrongful  delivery,  that  there  are,  nevertheless,  many 
exceptions  to  this  rule  and  one  of  them  is  that  the  true  owner 
of  the  property  may  enforce  his  right  to  it  as  against  the  con- 
signor or  consignee  of  the  carrier,  or  against  tlie  bailor  or  bailee, 
whenever  he  sees  fit  to  do  so,  before  its  delivery  as  directed. 
His  right  is  paramount  to  the  claim  of  all  others,  no  matter 
what  may  be  their  relations  to  each  other,  unless  it  is  lost,  or, 
for  the  time  being  suspended,  by  his  own  conduct  of  surrender 
or  estoppel.  80  also  a  warehouseman  receiving  goods  for  the 
consignee  who  had  actual  possession  of  them,  to  be  kept  for 
him  may,  nevertheless,  refuse  to  deliver  them  if  they  are  the 
property  of  another  and  the  latter  prohibits  their  redelivery. 
Wells  V.  American  Expi'ess  Co.,  55  Wis.  23. 

S>ame — Bailee  cannot  acquire  adverse  title  to  his  bailor. 

Where  property  intrusted  to  a  bailee  was  unlawfully  seized 
and  sold  and  the  bailee  purchased  the  same,  it  was  heltf  that  he 
thereby  acquired  no  title  to  the  property.  The  rule  is  that  one 
who  has  received  property  from  another  as  his  bailee  or  agent, 
must  restore  or  account  for  the  property  to  him  from  whom  he 
received  it.  Nor  can  the  bailee  recover  the  amount  which 
he  paid  at  such  sale,  it  not  appearing  that  the  owner  of  the 
property  authorized  such  payment.  £^»os  v.  Cole,  53  Wis.  235  ; 
Nudd  V.  Montanye,   38  Wis.  511. 

Same — Executory  contract  of — Possession. 
An  executory  contract  of  bailment  does  not  give  the   bailee 
named  in  the  contract  the  riglit  of  possession  in   the  propert}' ; 


826  WISCONSIN   DECISIONS. 

hut  such  right   accrues  to  the  bailee  on    delivery.     Crosly  v. 
German,  4  Wis.  373. 

Same — Bailee  cannot  deny  bailor's  title. 

A  bailee  is  at  all  times  at  liberty  to  show  that  his  bailor  has 
parted  with  his  interest  in  the  property  subsequent  to  the  bail- 
ment. But  such  bailee  cannot  at  law  dispute  the  original  title 
of  his  bailor.     JVudd  v.  Montayne,  38  Wis.  511. 

Same — Prima  facie  case — Burden  of  proof — Evidence. 

When  the  bailment  is  such  that  the  ])roperty  is  in  the  ex- 
clusive possession  of  the  bailee,  a\vay  from  the  bailor,  and 
is  returned  in  a  damaged  condition,  and  it  is  shown  that 
the  injury  is  such  as  does  not  ordinarily  occur  without 
negligence,  the  proof  of  these  facts  constitutes  ?iprima  facie  case 
against  the  bailee  and  puts  him  on  his  defense.  In  other  words, 
when  such  a  showing  is  made,  the  plaintiff  has  made  ?i  prima  facie 
case  under  the  rule  that  the  burden  is  on  the  part}^  asserting 
negligence  ;  and  the  law  will  then  presume  negligence  to  have 
been  the  case,  and  casts  upon  the  defendant  the  burden  of 
showing  the  loss  did  not  occur  through  his  negligence,  or,  if  he 
cannot  affirmatively  do  this  that,  at  least,  he  exercised  a  degree 
of  care  sufficient  to  rebut  the  presumption  of  it.  On  the  trial 
of  a  case  for  the  injury  of  a  horse  intrusted  to  another,  the  de- 
fendant was  permitted,  against  plaintiff's  objection,  to  testify 
that  a  certain  person  had  told  him  that  it  was  an  old  founder 
which  appeared  upon  the  horse  and  to  drive  it  home.  Al- 
though it  appeared  that  the  person  who  told  the  bailee  this  had 
had  forty  years'  experience  in  the  care  and  handhng  of  horses, 
it  was  held  that  it  was  clearly  error  to  allow  the  defendant  to 
testify  to  this  fact  as  it  was  an  attempt  to  establish  his  defense 
by  hearsay  evidence.     Hildebrand  v.  Carroll,  106  Wis.  324. 

Conversion — Disregard  of  orders  to  ship  in  a  certain  manner. 

In  an  action  against  a  warehouseman  for  the  conversion  of 
a  quantity  of  flour,  it  appeared  that  the  flour  was  stored  in  the 
defendant's  warehouse  and  that  a  properly  authorized  agent  of 
the  plaintiff  instructed  the  defendant  to  ship  the  same  by  rail 
to  a  certain  point.  It  further  appeared  that  the  defendant 
disregarded  this  order  and  shipped  the  flour  hy  steamer  through 
the  lakes,  and  that  the  flour  was  lost  while  in  transit.     It  was 


WISCONSIN.  827 

held  that  the  disregard  by  tlie  dofetuUint  of  the  instruction  of 
the  plaiiitiif  to  ship  the  tiour  by  rail  constituted  a  conversion 
thereof  for  which  the  defendant  was  liable.  Graves  et  al.  v. 
Smithy  14  Wis.  5  ;    Youny  v.  Miles^  20  Wis.  015. 

B. 

Ordinary  care — Definition. 

A  warehouseman  is  b(Mind  to  exercise  ordinary  care  and  dili- 
gence in  the  safe-keeping  of  goods  intrusted  with  him.  Such 
cai-e  may  be  said  to  be  that  which  men  of  common  prudence 
generally  bestow  upon  their  own  pro})erty  similaily  situated. 
Bimmick  v.  Milwaukee  tfc  St.  P.  By.  Co.,  18  Wis.  471. 

Sa77ie — Not  liable  in  the  absence  of  negligence — Burden  of 
proof. 

A  warehouseman  is  not  lial^lefor  the  loss  or  damage  of  prop- 
erty intrusted  to  him,  resulting  from  fire  or  other  causes,  in  the 
absence  of  negligence  or  fraud  on  his  part.  The  burden  of 
proof  to  show  such  negligence  is  upon  the  plaintiff.  Dimmick 
V.  Milwaukee  ^  St.  P.  Ry.  Co.,  18  Wis.  471 ;  Whitney  v.  Chi- 
cago ^  W.  Ry.  Co.,  27  Wis.  327 ;  Lemke  v.  Chicago,  M.  ^  St.  P. 
Ry.  Co.,  39  Wis.  449 ;  Schmidt  v.  Chicago  ^  N.  Ry.  Co.,  90 
Wis.  504. 

I. 

Commingling  of  wheat — Subsequent  separation — Effect  thereof 
— Replevin. 

Plaintiff  stored  a  large  quantity  of  wheat  in  a  warehouse  with 
the  understanding;  that  it  miiiht  be  mingled  witli  other  wheat 
of  similar  grade.  Subsequently  the  warehouseman  sold  all  of 
the  wheat  with  the  exception  of  a  quantity  equal  to  tliat  owned 
by  the  plaintiff.  The  warehouseman  then  sold  this  remaining;- 
wheat.  On  the  above  stated  facts  it  was  held  that  when  there 
remained  in  the  warehouse  the  quantity  of  wheat  e((ual  to  or 
slightly  less  than  that  claimed  by  the  plaintiff  that  this  identi- 
cal wheat  became  the  plaintiff's  property,  and  that  the  sul)se- 
quent  sale  thereof,  by  the  warehouseman,  constituted  a  conver- 
sion and  that  the  j^laintiff  could  recover  possession  of  the 
wheat  in  an  action  of  replevin  against  the  purchaser.  Young 
V.  Miles  et  al.,  23  Wis.  643.  See  also  same  case,  20  Wis. 
615. 


828  WISCONSIN   DECISIONS. 

Same — Effect  of  mixture  with  (jrain  of  better  quality  without 
bailor  s  consent. 

It  appeared  from  the  evidence  that  a  warehouseman  had 
kept  the  grain  of  a  depositor  in  a  separate  bin  but  had  previ- 
ously mingled  the  same  with  other  grain  of  a  sujierior  quality 
thus  enhancing  its  value.  In  an  action  to  recover  the  grain  or 
its  value  the  court  instructed  the  jury  that  the  interest  of  such 
depositor  immediately  attached  to  the  mixture  and  that  he 
would  be  entitled  to  an  equal  number  of  bushels  thereof, 
Easton  V.  Hodyes,  18  Fed.  Rep.  677. 

M. 

Pledge — Requisites. 

To  constitute  a  valid  pledge,  there  must  be  a  transfer  of  pos- 
session to  the  pledgee,  actual  or  constructive.  In  the  case  of  a 
])ledge,  a  lien  is  created  to  the  existence  of  which  possession  is 
absolutely  necessary  ;  in  this  important  respect  a  pledge  differs 
from  a  mortgage.  In  the  former  the  legal  title  remains  in  the 
pledgor  while  in  the  latter  the  title  passes  to  the  mortgagee. 
Seymour  v.  Colburn,  43  Wis.  71;  Geilfuss  v.  Corrigan,  95  AVis. 
651. 

Q- 

Warehouse  receipt — Must  be  issued  by  a  warehouseman. 

In  order  that  a  receipt  shall  be  a  warehouse  receipt,  in  this 
state,  it  must  be  issued  by  one  regularly  engaged  in  the  busi- 
ness of  warehousing.  The  court  will  not  take  judicial  notice 
that  one  is  a  warehouseman,  but  this  fact  must  be  proved  by 
the  proper  evidence.  Shcjjardson  v.  Cary,  Exec,  29  Wis.  34  ; 
Geilfuss  V.  Corrigan.^  95  Wis.  651. 

Same — Are  "  negotiable  instruments  " — Pledged  by  factor — 
Pass  title  to  the  'property — ''  Factors  Act  "  considered — Effect  of 
notice  to  vendee  or  pledgee. 

A  factor  was  intrusted  with  the  possession  of  warehouse  re- 
ceipts, the  property  represented  thereby  belonging  to  the  plain- 
tiff, and  had  deposited  them  with  the  defendant  bank  as  se- 
curity for  the  amount  which  he  owed  it  by  having  overdrawn 
his  account.  The  factor  subse(juently  died  insolvent  and  the 
defendant  sold  the  property  represented  by  the  receipts  and 
applied  the  proceeds  toward  the  account  owed  it  by  the  factor. 


WISCONSIN.  829 

The  plaintiff  brought  this  action  against  the  bank  on  tiie  ground 
that  it  was  a  fraud  on  tlie  part  of  tiie  factor  to  pletlge  the  re- 
ceipts and  that  no  title  had  passed  thereby.  It  wixs/ic/d,  under 
the  Factors  Act  of  this  state,  that  the  I'actoi-  had  authority  to 
pledge  receipts  in  his  possession  and  that  warehouse  receipts 
were  negotiable  under  the  laws  of  this  state  as  promissory  notes 
or  bills  of  exchange;  giving  to  the  holder,  under  all  ordinary 
circumstances,  imperative  presumption  of  title  in  power  of  dis- 
posal ;  that  a  principal  voluntarily  suffering  them  to  be  in  the 
hands  of  a  factor,  holds  (nit  the  factor  as  owner,  with  unlim- 
ited authority  to  dispose  of  them  ;  and  that  such  factor  may  bind 
his  principal,  contrary  to  his  instructions,  by  })ledge  of  securi- 
ties negotiable  at  common  law.  A  factor's  sale  or  pledge  of  a 
negotiable  warehouse  receipt,  in  violation  of  his  instructions, 
will  not  bind  his  ])rincipal,  if  the  vendee  or  pledgee  has  no- 
tice that  the  factor  holds  the  title  for  his  princi])al,  and  sells  or 
pledges  in  violation  of  the  principal's  instructions.  Price  v. 
The  Wisconsin  Marine  <.&  Fi7'e  Ins.  Co.,  43  Wis.  267.  See  Vic- 
tor Seioing  Machine  Co.  v.  Heller .,  44  Wis.  265.  Dicta  in  Hale 
V.  Dock  Co.,  29  Wis.  482,  criticised. 

&ame — Ejfect  of  transfer. 

The  execution  and  delivery,  by  a  warehouseman,  of  his  re- 
ceipt, carries  the  vendor's  title  in  constructive  possession  of  the 
property  to  the  vendee,  who,  or  the  party  claiming  under  him, 
as  the  holder  of  the  receipt,  is  thenceforth,  in  cases  free  from 
fraud  or  bad  faith,  regarded  as  the  owner  of  the  property  for 
all  purposes.  The  warehouseman  becomes  the  mere  bailee  for 
the  benefit  of  the  vendee,  or  other  holder  of  the  receipt,  and 
subject  to  his  order  and  control.  The  doctrine  of  Shepanlson 
V.  Greene,  21  Wis.  546,  criticised.  Shepardson  v.  Gary,  Exec, 
29  Wis.  34 ;  Price  v.  Wisconsin,  Marine  and  Fire  Ins.  Co.,  43 
Wis.  267. 

Same — Same — Effect  of  description  in  the  receipt — When  goods 
in  barrels  or  sealed  packages — Warehouseman  not  estopped  to 
deny  contents. 

It  appeared  that  a  warehouseman  had  given  a  receipt  for 
certain  barrels  of  "  mess  pork  "  by  the  terms  of  which  receipt 
they  were  to  be  delivered  to  bearer  ;  it  further  appeared  that 


830  WISCONSIN    DECISIONS. 

the  receipt  was  afterwards  purchased  by  one  entirely  in  good 
faith  and  presented  to  the  wai'ehouseman.  It  was  then  shown 
that  the  barrels  stored  did  not  contain '' mess  pork"  but  salt, 
thereupon  the  assignee  of  the  leceipt  refused  to  receive  the  same. 
It  was  held,  on  the  above  stated  facts,  that  the  warehouseman 
was  not  estopped  in  cases  where  goods  were  enclosed  in  barrels, 
or  other  sealed  packages,  to  deny  that  their  contents  were  as 
stated  in  storage  receipts,  and  further  that  the  tender  by  the 
warehouseman  of  the  identical  barrels  in  store  exonerated  him 
from  further  liability.  Hale  v.  The  Milwaukee  Dock  Co.,  23 
Wis.  276.     See  same  case  29  Wis.  482. 

&ame — Extent  of  negotiability — Object  of  statute. 

Under  the  statutes  of  this  state  the  transfer  of  a  warehouse 
receipt  "  by  delivery,  with  or  without  indorsement  thereof," 
transfers  no  more  than  the  property  in  the  goods, — it  does  not 
transfer  the  contract.  Warehouse  receipts  and  bills  of  lading 
do  not  possess  the  "  negotiable  "  character  of  commercial  paper. 
The  word  "  negotiable  "  as  used  in  the  act  of  1860,  ch.  340 
and  the  amendment  sec.  1,  ch.  73,  Laws  of  1863,  is  evidently 
not  intended  to  be  interpreted  in  the  same  manner  as  when  ap- 
plicable to  a  bill  of  exchange.  It  is  intended  only  to  mean  the 
passing  of  the  property  in  the  goods  themselves.  Hale  et  al. 
V.  The  Milioaukee  Dock  Co.,  29  Wis.  482.  But  see  Price  v. 
Wisconsin  Marine  <j&  Tire  Tis.  Co.,  43  Wis.  267,  in  which  cer- 
tain dicta  in  the  above  case  is  criticised. 

Same — As  collateral  security — Not  affected  by  statute  relating 
to  chattel  mortgages. 

Where  a  warehouse  receipt  was  pledged  as  collateral  security, 
it  was  held  that  the  relations  of  the  parties  were  not  af- 
fected by  the  statute  regulating  the  making  and  filing  of 
mortgages  of  personal  property.  Sheimrdson  v.  Cary,  Exec, 
29  Wis.  34;  Rice  v.  Cutler,  17  Vis.  351. 

iiame — Same — Must  be  valid  "  ivarehouse  receipts. " 
In  order  to  validily  pledge  property  represented  by  a  ware- 
house receipt  it  must  be  a  receipt  issued  by  a  warehouseman 
and  in  accordance  with  the  terms  of  the  statute.     Where,  there- 
fore, one  attempted  to  pledge  property  represented  by  "  storage 


WISCONSIN.  831 

warrants,"  it  was  held  that  tiic  pledgee  took  no  title  to  the 
property  represented  thereby  as  against  creditors  of  the  pledgor. 
Geilfuss  V.  Corrigan^  95  Wis.  651. 

Same — Pledgee  may  maintain  trover. 

Where  one  holds  a  warehouse  receipt  as  collateral  security, 
such  pledgee  may  inaintaiti  trover  against  the  warehouseman 
for  the  recovery  of  the  wheat  or  its  value.  Eaduu  v.  Hodyes, 
18  Fed.  Rep.  077. 

Same — As  collateral. 

A  bank  which  received  such  storage  warrants  in. good  faith 
from  a  mining  company  as  collateral,  but  which  never  had 
any  other  possession  of  the  iron  than  that  given  by  the  transfer 
of  the  warrants,  and  never  notified  the  furnace  company  of  its 
claim  thereto,  but  permitted  the  latter  to  dispose  of  the  iron  on 
hand  and  substitute  other  iron  in  its  place — acquired  no  lien  on 
the  iron  as  pledgee  as  against  third  persons,  even  conceding 
that  the  title  thereto  passed  to  the  mining  company.     Id. 

False  warehouse  receipt — Replevin  cannot  be  maintained  by 
holder  of — Evidence. 

Where  a  warehouseman  gave  a  receipt  for  wheat  which  he 
did  not  receive,  and  afterwards  the  quantity  which  he  actually 
had  was  divided  amongst  the  respective  depositors,  an  action 
of  replevin  brought  by  the  assignee  of  the  fictitious  receijit 
could  not  be  maintained  when,  under  it,  one  of  those  portions 
was  seized.  Evidence  offered  to  show  that  the  wheat  in  ques- 
tion was  assigned  to  the  defendant  was  objected  to  by  tiie 
plaintiff  in  the  replevin  ;  but  such  objection  was  properly  over- 
ruled. The  plaintiff  had  shown  no  title  in  himself.  So  also, 
evidence  was  admissible  to  show  that  the  receiver  of  the  ficti- 
tious certificate  had  never  deposited  any  wheat  in  the  warehouse. 
The  defendants  in  this  case  were  the  assignees  of  the  original 
warehouseman,  and  were  not  responsible,  unless  it  could  be 
shown  that  wheat  was  deposited,  which  had  come  into  their 
possession.     Jackson  v.  Hale  et  at.,  14:  How.  525. 


^32  wvo.^u^■G  LAWS. 


CHAPTER  L. 
WYOMING. 

LAWS  PERTAINING  TO  WAKEHOUSEMEN. 

Warehousemen  uot  to  issue  receipts  until  ^oods  received  : 

No  warehouseman,  wharfinger  or  other  person  shall  issue  any 
receipt  or  other  voucher  for  any  goods,  wares,  merchandise, 
grain  or  other  pi-oduce  or  commodity,  to  any  person  or  persons, 
purporting  to  be  the  owner  or  owners  thereof,  unless  such  goods, 
wares,  merchandise  or  other  pi-oduce  or  commodity,  shall  have 
been  bona  fide  received  into  store  by  such  warehouseman  or 
wharfinger,  or  other  person,  and  shall  be  in  store  and  under  his 
control  at  the  time  of  issuing  such  receipt.  Revised  Statutes, 
Wyoming,  1899,  sec.  5152. 

Not  to  issue  receipts  as  security  unless  invested  with  owner- 
ship : 

Ko  warehouseman,  wharfinger  or  other  person  shall  issue 
any  receipt  or  other  voucher  upon  any  goods,  wares,  merchan- 
dise, grain  or  other  produce  or  commodity,  to  any  person  or 
persons,  as  security  for  any  money  loaned,  or  other  indebted- 
ness, unless  such  goods,  wares,  merchandise,  grain  or  other 
produce  or  coramodit}^,  shall  be  at  the  time  of  issuing  such  re- 
ceipt, the  property  of  such  warehouseman  or  wharfinger,  or  other 
person,  and  shall  be  in  store  and  under  his  control  at  the  time 
of  issuing  such  receipt  or  othei*  voucher  as  aforesaid.  Id. 
sec.  5153. 

Not  to  issue  second  receipt  for  same  goods  : 

No  warehouseman,  wharfinger  or  other  person,  shall  issue 
any  second  receipt  for  any  goods,  wai'es,  merchandise,  grain  or 
other  produce  or  commodity,  while  any  former  receipt  for  any 
such  goods  or  chattels  as  aforesaid,  or  any  part  thereof,  shall 
be  outstanding  and  uncancelled.     Id.  sec.  5154. 

Not  to  sell  or  transfer  goods  without  consent  of  owner  : 

No  warehouseman,  whai'linger  or  other  pei'son  shall  sell  or 


.     WYOMING.  838 

incumber,  ship,  transferor  in  any  manner  remove  beyond  his 
immediate  control  any  goods,  wares,  mercinindisc,  grain  or 
other  produce  or  commodity,  lor  whicli  a  receipt  siiall  have 
been  given  as  aforesaid,  without  the  written  assent  of  the  [)er- 
son  or  persons  holding  such  receipt.     Id.  sec.  5155. 

Penalty  for  violating  fonr  preceding  sections  : 

Any  warehouseman,  wliarlinger  or  otiicr  j)erson  who  shall 
violate  any  of  the  foregoing  })rovisions,  lelating  to  wareliouse- 
men,  shall  be  deemed  a  cheat  and  be  subject  to  indictment  and 
upon  conviction  shall  l)e  (ined  in  any  sum  not  more  than  one 
thousand  dollars  and  im])risoned  in  the  penitentiary  not  more 
than  five  years,  and  all  and  every  person  aggrieved  may  have 
and  maintain  an  action  on  the  case  against  the  person  or  per- 
sons violating  any  of  the  foregoing  provisions  relating  to  ware- 
housemen, to  recover  all  damages,  immediate  or  consequential, 
which  he  or  they  may  have  sustained  l)y  reason  of  such  viola- 
tion as  aforesaid,  before  any  court  of  competent  jurisdiction, 
whether  such  person  shall  have  been  convicted  as  a  cheat  un- 
der the  foregoing  sections  or  not.     Id.  sec.  5156. 

Common  carriers  and  warehousemen — Liens  : 

Every  common  carrier  of  goods  or  passengers  who  shall,  at 
the  request  of  the  owner  of  any  personal  goods,  carry,  convey, 
or  transport  the  same  from  one  place  to  another,  and  any  ware- 
houseman or  other  person  who  shall  safely  keep  or  store  any 
personal  property  at  the  request  of  the  owner  or  person  law- 
fully in  possession  thereof,  shall,  in  like  manner,  have  a  lien 
upon  all  such  personal  property,  for  his  reasonable  charges  for 
the  transportation,  storage,  or  keeping  thereof,  and  for  aU 
reasonable  and  proper  advances  made  thereon  by  him  in  ac- 
cordance with  the  usage  and  custom  of  common  carriers  and 
warehousemen.     Id.  sec.  2846. 

Appointment  of  appraisers  : 

If  any  such  charges  for  Avhich  a  lien  is  given  by  the  preced- 
ing sections  of  this  chapter  be  not  paid  within  thirty  days  after 
the  same  becomes  due  and  payable,  the  mechanic  or  other  per- 
son to  which  such  lien  is  given  may  apjily  to  any  justiee  of  the 
peace  of  the  county  wherein  the  property  on  which  tiie  lien  is 
claimed  is,  to  appoint  appraisers  to  appraise  such  property, 
53 


834  WYOMING   LAWS. 

Such  justice  shall  thereupon  appoint  by  warrant,  under  his 
hand,  three  disinterested  householders  of  the  county,  to  ap- 
praise such  personal  })roperty.     Id.  sec.  2847. 

Oath  and  duty  of  appraisers  : 

The  appraiseis  so  appointed  shall  be  sworn  by  the  justice, 
to  well  and  faithfully  appraise  and  value  all  such  personal  prop- 
erty, and  shall  thereupon  proceed  to  view  and  appraise  the 
same,  and  shall  return  appraisement  wherein  shall  be  set  down 
each  article  separately,  to  the  justice,  by  whom  they  were  ap- 
pointed, within  ten  days  after  their  ap})ointment.     Id.  sec.  2848. 

Notice  of  sale — Sale  and  application  of  proceeds  : 

After  such  appraisement  is  made,  the  person  to  w'hom  such 
lien  is  given  by  the  foregoing  sections  of  the  chapter,  shall  give 
ten  days  prior  notice  of  the  time,  place,  and  tei'ms  of  sale  to- 
gether with  a  description  of  the  property  to  be  sold.  Such  no- 
tice shall  be  personally  served  upon  the  ownei-,  or  the  pei'son 
from  whose  possession  such  property  was  received,  if  such 
owner  or  person  reside  within  the  county ;  if  not,  by  publication 
in  some  newspaper  published  in  the  county  wherein  the  per- 
son attempting  to  enforce  his  lien  resides  (or  if  there  be  no 
such  newspaper,  then  by  posting  in  three  public  places  within 
such  county  for  at  least  four  weeks),  and  shall  transmit  b}' 
mail  to  the  owner,  at  his  usual  place  of  abode,  if  known,  a  copy 
of  such  notice,  the  notice  being  personally  served,  or  the  serv- 
ice being  complete  after  four  weeks,  the  party  claiming  a  lien 
may  proceed  to  sell  all  such  personal  property,  or  as  much 
thereof  as  may  be  necessary  to  pay  his  claim,  at  |)ublic  auction, 
for  cash  in  hand,  at  any  public  place  within  such  county,  named 
in  such  notice,  between  the  hours  of  ten  A.  M.  and  four  P.  ]\I., 
of  the  day  appointed  ;  and  from  the  proceeds  may  pay  the  rea- 
sonable costs  of  such  appraisement,  notice,  and  sale,  and  his 
reasonable  charges  for  which  he  hath  his  lien.  The  residue  of 
the  property  unsold,  he  shall  surrender  unto  the  owner.  Id. 
sec.  2849. 

Requisites  of  sale: 

No  such  sale  shall  be  made  for  less  than  two  thii-ds  of  the 
appraised  value  of  the  article  sold,  nor  except  upon  due  no- 
tice, as  required  by  the  preceding  section.     Every  such  sale 


WYOiMING.  835 

made  in  violation  of  the  j^rovisions  of  this  section   shall  be  ab- 
solutely void.     Id.  sec.  2850. 

Lien  holders  may  purchase ; 

At  any  such  sale,  the  person  to  whom  such  lien  is  given,  may 
become  the  purchaser.     Id.  sec.  2851. 

Adjourniiient — IJill  of  sale  : 

In  any  case  where  the  property  to  be  sold  cannot  conven- 
iently be  sold  in  one  day,  the  sale  may  be  continued  from  day 
to  day,  by  public  outcry,  at  the  place  of  sale.  Upon  the  com- 
pletion of  such  sales,  the  person  to  whom  the  lien  is  given  here- 
by, shall  cause  a  bill  of  sale  thereof  to  be  filed  with  the  justice 
of  the  peace  before  whom  the  appraisement  was  had,  in  wiiich 
shall  be  set  down  the  sum  for  Avliich  each  separate  article  of 
property  was  sold,  and  the  name  of  the  ])urchaser.  The  justice 
shall  record  such  bill  of  sale  in  his  docket,  and  preserve  the 
original  thereof  together  with  the  appraisement.     Id.  sec.  2852. 

Right  of  action  preserved : 

Nothing  herein  contained  shall  be  so  construed  as  to  take 
away  the  right  of  action  of  the  i)arty  to  whom  such  lien  is 
given  for  his  charges,  or  for  any  residue  thereof  at  the  sale  of 
such  property.     Id.  sec.  2853. 

Clerk  and  crier  of  sale  : 

At  any  such  sale,  the  person  to  whom  such  lien  is  given  as 
herein  provided,  may  appoint  a  clerk  and  crier.     Id.  sec.  2854. 

Fees  of  appraisers : 

Appraisers  appointed  under  the  provisions  of  this  chapter 
shall  receive  three  dollars  per  day ;  justices  of  the  peace  shall 
receive  for  each  warrant  of  appraisement  twenty  cents  per  one 
hundred  words,  and  the  like  fees  for  recording  each  bill  of  sale. 
Clerks  and  criers  at  sales  made  under  the  provisions  hereof 
shall  receive  each  three  dollars  per  day.     Id.  sec.  2855. 

Chattel  mortgages  subject  to  liens  : 

No  mortgage  on  personal  jiropert}'  shall  be  valid  as  against 
the  rights  and  interests  of  any  person  entitled  to  a  hen  under 
the  provisions  of  this  chapter.     Id.  sec.  2856. 


836  WYOMI^•G   LAWS. 

Timber  liens  to  be  paid  pro  rata  : 

All  lien  claims  for  labor  performed  in  cutting  or  manufac- 
turing railroad  cross  ties,  wood,  poles,  or  lumber,  or  for  doing 
any  labor  in  reference  thereto,  shall  be  concurrent  liens  upon 
the  same,  and  shall  be  paid,  jpro  rata,  out  of  the  proceeds  ris- 
ing from  the  sale  thereof,  if  the  same  shall  be  sold.  Id.  sec. 
2857. 

Ideiitiflcation  of  property  not  required  in  timber  liens  : 

Persons  entitled  to  a  lien  for  labor  performed  in  cutting  or 
manufacturing  any  railroad  cross  ties,  wood,  poles,  or  lumber, 
shall  not  be  required  to  identify  any  particular  tie  or  ties,  or 
sticks,  poles  or  boards,  but  may  maintain  their  lien  against  any 
or  all  of  that  class  of  property  owned  and  held  by  the  person 
or  persons  from  whom  their  pay  for  such  labor  is  due,  and  may 
seize  and  sell  the  same  as  provided  in  this  chapter.  Id.  sec. 
2858. 

When  lien  not  to  affect  bona  fide  purchasers  : 

No  lien  upon  pei'sonal  property  shall  be  valid  as  against  an 
innocent  and  honajide  purchaser  unless  the  person  having  the 
right  of  such  lien  shall  notify  said  purchaser  before  he  makes 
payment  for  such  property,  of  the  existence  of  such  lien,  in 
which  case  the  purchaser  shall  be  responsible  to  the  person 
having  such  lien  claim  against  said  property,  for  the  full  amount 
of  his  claim,  and  all  legitimate  costs  and  expenses,  and  pay- 
ment made  on  such  lien  claim  shall  apply  on  payment  for  such 
personal  property.     Id.  sec.  2859. 


WVOMING.  837 


DECISIONS  AFFECTING    WAREHOUSEMEN. 

H. 

Lien— Depositor   must  he  in  laiofal  possession  of  property. 

By  virtue  of  sec.  2846,  Revised  Statutes  of  1899,  any  ware- 
houseman or  otiiei-  person  is  entitled  to  a  lien  on  property  wiio 
shall  safely  keep  the  same  at  the  request  of  the  owner  or  of  the 
person  lawfully  in  possession  thereof.  AVhere,  therefore,  it  was 
stipulated  between  the  parties  to  a  suit  that  the  plaintiff  was 
in  lawful  possession  of  the  property  at  the  time  when  deposited 
with  the  defendant,  it  was  held  that  the  defendant's  lien  for 
charges  attached  under  this  statute.  Kimball  Co.  v  Payne  et 
ux.,  9  Wyo.  441. 

Same— If  entitled  to  storage  charges  lien  attaches— Need  not  be 
a  ''warehouseman.''' 

In  a  case  where  one  stored  goods  for  another  which  was  re- 
manded for  a  new  trial,  it  was  Md  that  if  the  defendant  could 
show  that  he  was  entitled  to  any  charges  whatever  for  his  care 
of  the  goods  that  his  lien  for  charges  would  attach  thereto  un- 
der sec.  1471  of  the  Revised  Statutes,  1887,  being  sec.  2486  of  the 
Revised  Statutes  of  1899.  It  is  not  necessary  that  the  person 
earning  the  storage  charges  be  a  warehouseman  in  the  strict 
technical  sense ;  a  company  engaged  in  a  general  mercantile 
business  may  come  within  its  provisions  if  it  has  earned  storage 
charges.  Knight  et  al.  v.  Beckwith  Commercial  Co.,  6  AVy'o. 
500  ;  Kimhall  Co.  v.  Payne  et  nx.,  9  Wyo.  441. 


INDEX. 


References  to  laws  are  printed  in  ronian.    Tliose  to  decisions  are  in 

italics. 

ABANDONED.     See  also  UNCLAIMED  PROPERTY.  pagr 

property  when  may  be  sold, Kan.  227 

ACCEPTANCE, 

of  bill  of  lading,  effect  as  to  exemptions, Ga.  121 

of  bill  of  lading  implies  assent  to  exem,ptions  therein, Colo.     72 

ACCIDENT, 

effect  of  exemption  in  bill  of  lading,  against  unavoidable  accident, 

N.  Mex.  550 

there  must  be  no  negligence,  Ky.  278 

when  bailee  not  liable  for  loss  occasioned  by, Itid.  199 

negligence  must  be  shown Ind.  204 

ACCOUNTS, 

weighmasters  to  keep,  of  all  weighing, Minn.  400 

'  to  be  kept  by  warehousemen,  Me.  309 

statute  of  limitations  runs  from  date  of  last  item, Ga.  104 

ACTION.     See  also  SUIT. 

by  assignee  of  unindorsed  receipt, Mi.fs.  452 

pledgee  may  maintain  in  his  own  name, S.  Dak.  749 

may  be  maintained  by  payees  and  indorsers  of  warehouse  receipts 

etc.,  same  as  by  tho.se  of  bills  of  exchange, Wis.   814 

against  sealers  of  weights  and  measures,  how  instituted,  ..  .  .Minn.  423 
on  warehouseman's  bond,  how  brought, Mass.  332 

ACT  OF  GOD, 

warehousemen  not  liable  for  losses  resulting  from, Ohio.  G50 

never  includes  fire  of  incendiary  origin,  Cat.     57 

damage  by  elements  included  therein, Cal.     47 

when  loss  by  flood  amounts  to, ^io.  494 

ACT  OF  WAR, 

when  bailee  not  liable  for  loss  by, Tcnn.  75() 

not  a  trespass,   Ca.  112 

trover  ivill  not  lie  for  goods  taken  by, Ala.  13 

instructions  to  jury, 6'a.  1 13,  Tenn.  753 

"ACTUAL  NOTICE."     See  also  NOTICE. 

what  is  equivalent  to ^Id.  330 

839 


840  INDEX. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

ADVANCES,  PAGE 

issuance  of  receipt  xcilhout  knoided(fe  of,  \mrehovseman  not  liable, 

N.    Y.  595 
when  warehouseman  pays  he  is  subrogated  to  rights  of  one  icho  made 

them,  .V.  1'.  568 

made  by  warehousemen,  usury, iV.  1'.  574 

by  warehousemen  for  freight,  entitled  to  recover  in  full, N .  Y .  574 

inferior  to  warehouseman's  lien, Ga.  1 10 

goods  may  be  sold  for,  within  ninety  days, Colo.     65 

factors  may  sell  to  recover, Ga.  108 

if  made  against  stored  grain  notice  of  must  appear  on  warehouse 

receipt, Minn.  380 

ADVERSE  CLAIMS, 

bailee  taking  with  notice  of Tex.  766 

duty  of  bailee  in  case  of, Ala.  9 

warehousemen  not  liable  unless  apprised  of  the  same, Cal.  47 

depositary  must  give  prompt  notice  of  to  owner, Cal.  34 

must  be  asserted  by  bailee  to  constitute  conversion, Ky.  275 

when  delivery  to  bailor  constitutes  conversion, Tex.  766 

ADVERSE  HOLDING, 

there  must  be,  before  statute  of  limitations  begins  to  run, la.  221 

ADVERSE  INTEREST, 

what  constitutes  actual  notice  of,  on  a  bill  of  lading, Md.  330 

ADVERTISEMENTS.     See  also  PUBLICATION. 

containing  false  statements  as  to  construction  of  warehouse,   ..N.Y.  587 

that  warehouse  is  fireproof,  effect, Tex.  769 

of  sale  of  unclaimed  tobacco, Va.  791 

of  sale  of  unclaimed  property  by  carriers, S.  C.  723 

AFFIDAVIT, 

to  be  filed  in  case  of  sale  of  unclaimed  property 

la.,  215,  Minn.,  376,  Neb.,  5C6,  Wash.,  804,  Wis.  812 

to  be  filed  in  case  of  sale  for  storage  charges, Mass.  337 

to  be  filed  when  warehouse  receipt  is  used  as  collateral, La.  287 

AGENCY, 

negligence  of  carrier  not  imputable  to  owner  on  ground  of, Miss.  451 

AGENTS, 

may  sign  warehouse  receipts,  bills  of  lading  and  other  vouchers. 

Wis.  813 

when  personally  liable  for  storage  charges. Ga.  105 

no  presumption  of  ownership  from  possession  by  avowed  agents,  .  La.  298 

how  far  considered  owner  of  goods  in  their  care, Me.  308 

pledge  by,  rights  of  true  owner, Me.  308 

personally  liable  if  they  assist  in  act  of  conversion, Minn.  434 

fraudulent  appropriation  of  merchandise  intrusted  with,  penalty, 

Neb.  531 


INDEX.  841 

References  to  laws  are  jmntcd  in  ronnin.     Those  to  decisions  are  in  italics. 

AGENTS — Continued.  p\OE 

token  warehousemen  estopped  hij  false  receipts  of S.  Dak.  749 

delivery  by  bailee  to  agent  of  bailor,  defense S.C.  726 

when  deemed  true  owners  of  propertj'  in  their  hands Ohio,  028 

AGISTERS, 

have  lien  for  cluirtjes, Orp  f,7,^ 

manner  of  enforcing  hens  of, ( )r(;.  679 

ALTERATION, 

of  warehouse  receipt,  penalty, Ore,  C.sl ,  Wis.  s23 

AMENDMENT, 

of  petition  for  warehouse  site  on  line  of  railroad S.  )).  712 

ANNUAL  REPORTS.     See  also  REPORTS. 

liability  of  directors  where  there  is  a  failure  to  file, X.  V.  599 

ANTECEDENT  DEBT.     See  also  DEBT. 

depositing  property  by  an  a!2;ent  to  secure  an,  effect, Oliio,   023 

effect  of  person  taking  property  from  factor  or  agent  to  secure,  Me.  308 

pledge  for,  made  by  factor,  owner  protected, X.  Y.  558 

delivery  of  goods  in  settlement  of,  ivhen  will  not  defeat  a  pledge,  ..Pa.  709 

APPEAL.     S-e  also  COMMITTEE  OF  APPEALS. 

from  grain  inspectors  to  arbitration  committee,  Kan.,  2.'1S,  Okla.  070 

to  board  of  appeals  where  grain  inspected, Minn.  42.3 

to  Board  of  Arbitration,  when  it  lies, Mo.  474 

from  chief  grain  inspector  to  committee  of  appeals,  III.,  147,  Xcl).  529 

APPLES, 

negligence  in  allowing  same  to  decay,  question  for  jury, Minn.  437 

APPLICATION, 

to  build  warehouse  near  railway  tracks,  how  made, Minn.  416 

APPOINTMENT, 

of  tobacco  samplers, Va.  7S0 

and  qualification  of  deputy  inspectors  of  toljacco, Mo.  485 

of  chief  grain  inspector  by  governor, Okla.  656 

of  tobacco  inspectors  by  probate  court., ( )hii>,  036 

APPRAISERS, 

appointment  of,  when  property  to  be  sold  under  a  lien,  .  .  .  .Wvo.  S33 
pay  of,  where  site  for  warehouse  condemned,   S.  Dak.  746 

APPROACHES, 

to  ivarehovse,  warehousemen  not  held  to  high  degree  of  care  in  regard  to, 

III.   102 

APPROPRIATION 

to  carry  out  provisions  of  warehouse  act,  Minn.  400 

ARBITRATION  COMMITTEE, 

appointment  of, Mo.,  475,  ( )kla.  070 

cost  of  appeal  to,  how  sliown, Md.  325 


8-12  INDEX. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

ARBITRATION  COMMITTEE— Coniiuued.  page 

payment  of  awards  made  by,  Md.  324 

rules  governing,  to  be  made  by  boards  of  commissioners,  ....  Okla.  671 

appeal  from  grain  inspectors  to, Okla.  670 

rules  governing,  Mo.  475 

selection  of, Md.  324 

when  appeals  lie  to, Mo.  474 

ARSON, 

burning  a  warehouse  in  night-time,  penalty, Ore.  680 

ASSETS, 

of  a  warehouseman  may  be  reached  by  holder  of  ineffectual  receipt, 

Ky.  284 

ASSIGNEE, 

for  benefit  of  creditors  not  bona  fide  holder  of  warehoufte  receipt,  .Pa.  703 

of  ivarehouse  receipt  liable  for  storage  charges ^ III.  166 

not  estopped  to  deny  sale  by  assignor, Ky.  284 

suit  by,  of  receipt,  takes  assignor's  rights, ///.  177 

ASSIGNMENT, 

of  non-negotiable  warehouse  receipts,  when  effective, S.C.  718 

of  title  to  be  recorded  by  warehouseman, D.  of  C.  86 

ASSUMPSIT, 

demand  not  necessary  before  action  brought, R.I.  713 

when  warehouseman  may  maintain,    Ala.  11 

bailor  may  sue  in,  where  goods  sold, D.  of  C.  88 

in  action  for  conversion, ///.  162 

"AT  OWNER'S  RISK  AS  TO  FIRE," 

construed,  la.  220 

ATTACHMENT, 

of  bailed  property,  effect, N.  II .  542 

valid  ichcre  receipt  for  goods  not  issued  by  public  warehouseman, 

Mass.  348 

warehouseman  may  be  garnisheed, Pa.  697 

dissolution  of,  on  bailed  property, Pa.  691 

possession  of  bill  of  lading  before  delivery,  when  attachment  fails, 

Tenn.  759 

of  property  after  delivery  of  bill  of  lading,  ineffectual, .S.C.  729 

sheriff  may  break  outer  door, ^'t.  775 

of  goods  in  hands  of  bailees  regulated, Pa.  691 

when  levied  against  stored  goods,  owner  to  be  notified, Mich.  359 

of  property  while  bailed,  owner  cannot  maintain  trover, Tenn.  754 

grain  in  m,ass  not  subject  to,  in  action  against  warehouseman,  .  .  .III.  171 

possession  of  officer,  by  leaving  person  in  charge, Cal.  56 

a  warehouseman's  liens  on  stored  property  not  subject  to  attachment, 

III.  167 

delivery  to  officer  under,  is  not  conversion, Mass.  340 

will  lie  against  person  in  wliose  name  receipt  issued, Me.  309 


INDEX.  848 

References  to  laws  arc  jrrinlcd  in  roman.     Those  to  decisions  arc  in  italics. 

ATTACHMENT— CoM/i/iucd.  ,.aoe 

penalty  for  disposing  of  receipt  without  disclosing, M.-.  .'{(W 

penalty  for  disposing  of  receipt  after, Mji-ss.  ."^35 

in  case  of  bailor,  may  sue  in  replexnn, Me.  313 

ATTORNEY  GENERAT., 

to  be  attorney  for  railroad  connnissioners, S.  Dak.  738 

to  be  ex  officio  attorney  for  chief  inspector  of  grain, Kan.  '23S 

to  be  ex  officio  attorney  for  the  railroad   and  warehouse   commis- 
sion,   ;^Iinn  399 

duty  of,  where  warehouse  act  violated y[o.  477 

and  state's  attorney  to  prosecute  suits  against  warehousemen, .  .  111.  155 

to  prosecute  suits  for  violation  of  warehouse  act, Nelj.  52S 

ATTORNMENT, 

by  warehouseman  not  necessary  to  complete  symbolic  delivery, ....  Mo.  497 

AUCTION.     See  also  SALE. 

when  warehouseman  may  sell  stored  grain  at, Minn.  390 

compensation  allowed  for  selling  tobacco  at Ky.  268 

of  tobacco  to  be  free  and  open, Ky  270 

combination  to  interfere  with  bidding  unlawful Kv.  270 

AUDITOR.    See  also  COUNTY  AUDITOR. 

AUDITOR  OF  STATE, 

detailed  report  of  grain  inspection  to  be  filed  with,  monthly, .  .  Kan.  234 

AWARD, 

of  arbitration  committee,  payment  of, Md.  324 

BAGGAGE, 

sale  of  when  unclaimed,  when  and  how  made, S.  C  723 

delivery  of  unclaimed,  to  warehousemen, Minn.  378 

BAILEE.     See    also  DEPOSITARY;  TITLE;  INVOLUNT-Mn'   B.VI- 
LEE;  WAREHOUSEMEN. 

cannot  acquire  a  title  adverse  to  his  bailor, Wis.  825 

wrongful  conversion  by,  declared  larceny, C)re.  G80 

not  liable  where  property  taken  by  legal  process Pa.  692 

embezzlement  by,  larceny, Ind.  Terr.  210 

when  guilty  of  embezzlement, Idaho,  124 

property  held  by,  not  subject  to  execution  in  an  action  again.st, ....  Neb.  537 

reputation  of,  when  not  in  issue  in  case  of  theft, ]'a.  795 

may  maintain  detinue, Vn.  795 

when  stored  property  liable  for  debts  of — rule  stated, S.  C.  72G 

when  he  may  maintain  trover  against  the  owner, S.  C.  728 

may  maintain  replevin, Mo.  494 

ivhen  burden  of  proof  on, (^a.  104 

mortgagee    in  possession  of  personal    property,  when  deemed  a 

bailee, Ore.  680 


844  Index. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

BAILEE— Continued.  page 

has  no  right  to  pledge  bailed  property, /van.  253 

may  maintain  action  for  loss  or  damage, la.  219 

duty  of,  upon  receipt  of  property  consigned  to  him, Wis.  811 

rights  of, Ga.  101 

liability  of,  may  be  affected  by  usage, Tenn.  753 

has  burden  of  proof  where  he  alleges  title  in  another  than  bailor, .  .  Ore.  682 

there  must  be  an  adverse  claim  or  dominion  by,  before  convcr.'iion, .  Ky.  275 

extent  to  which  they  may  limit  their  liability, Tex.  766 

duty  where  property  seized  under  legal  process, Miss.  451 

can  give  no  lien, Me.  313 

m,ay  sue  in  own  name, Me.  313 

must  show  dihgence  after  proof  of  loss, Ga.  101 

may  recover  for  loss  of  goods, Conn.  78 

duty,  where  there  are  adverse  claims, Ala.  9 

BAILMENT.     See  also  DEPOSIT. 

defined  by  statute, Ga.  101 

essence  of  contract, Ga.  103 

universal  rule  of, Kan.  250 

what  constitutes  a  contract  of, Ind.  199 

kinds  and  liabilities, Del.     85 

where  bailee  has  power  to  sell  he  cannot  delegate  if, Vt.  775 

xvith  power  of  sale  is  a  personal  trust, Vt.  775 

when  stored  property  liable  for  bailee's  debt, S.  C.  726 

executory  contract  of,  does  not  give  right  of  possession, Wis.  825 

bailee's  liability  may  be  changed  by  contract,  extent  of, Vt.  775 

identical  goods  must  be  returned, D.  of  C.     88 

and  sale  distinguished, Conn.     78 

care  which  a  bailee  for  hire  must  exercise, N .  Mex.  550 

grain  commingled;  transaction  remains  a  bailment, S.  Dak.  736 

ivith  option  to  sell,  effect, D.  of  C.     88 

burden  of  proof  when  goods  are  lost, Neb.  540,  Pa.  696 

delivery  to  true  owner  always  good  defense  for  bailee, Neb.  536 

when  bailor  had  no  title,  delivery  to  true  owner  good  defense, ]'t.  775 

bailee  may  refuse  to  deliver  to  bailor  when  not  real  owner, Wis.  825 

burden  of  proof,  shifting  of  weight  of  evidence, Wis.  826 

when  statute  of  limitations  begins  to  run,    la.  221,   S.  C.  720,    Tex.  767, 

W.  Va    809 

bailee  must  folloiv  instructions  of  his  bailor, Fla.     95 

action  against  bailee  one  in  contract, TT'.  Va.  810 

equity  has  not  jurisdiction  in  case  of  conversion, TT'.  Va.  809 

when  removal  of  goods  under  bailor's  orders  is  conversion, .....  Tex.  766 

owner  may  sue  bailee  although  not  a  party  thereto, Tex.  766 

legal  presumption  from  bailee's  failure  to  deliver  on  demand,.  .  .Nev.  540 

no  implication  of  sale  from, Pa.  696 

what  constitutes  a  prima  facie  ra.se, Wis.  826 

requisite  of  a  prima  facie  ca.sp , Cal.     47 

building  where  goods  stored  m^ist  be  reasonably  safe, R.I.  712 


INDEX.  845 

References  to  laws  are  printed  in  roman.     Those  to  decisions  arc  in  italics. 

BAILMENT — Continued.  i-agb 

owner  of  goods  may  maintain  replevin, Mc.  3i;i 

bailee  taking  ivith  notice  of  claim,  effect, Tei.  7(><i 

special  deposit  in  bank, (7a    lO:} 

if  bailee  contract  to  keep  property  in  a  certain  manner  he  must  do  so, 

Neb.  530 

attachment  against  bailed  properly, .V.  //.  512 

sale  by  bailee  conveys  no  title  to  purchaser, .V.  //.  5 12 

absolute  contract  of,  construed, C'nl.      17 

when  bailee  cannot  call  on  third  party  to  interplead, V.  ./.  54.S 

rohen   not    countermandable, Md.  327 

bailee  may  sue  in  his  own  name, ^fe.  313 

BAILEE    CANNOT    DENY    BAILOR'S    TITLE. 

maif  show  that  bailor  has  parted  with  his  property, Wis.  S2G 

exception   to  ride, ^\' .  la.  809 

BAILMENT  AND  SALE.     See  also  SALE. 

principle  determining  when  the  transaction  is  one  or  the  other, ....  ///.   100 

effect  of  special  agreement, ///.  160 

intention  of  parties  to  receipt,  construed Mich.  371 

interpretation  of  ambiguous  warehouse  receipt, Va.  794 

effect  of  "bought  of"  in  receipt, la.  220 

instruction  to  jury, Ill-  160 

question  as  to  ivhich  a  transaction  amounts  to  is  one  for  the  jury,  Ohio.  64S 

where  grain  commingled,  transaction  remains  a  bailment, 

la.  219,  III.  159,  169,  Ind.  200,  Ky.  272,  Minn.  433,  N.  D.  624, 

Ohio,  647,  Ore.  682 
statute  declaring  transaction  to  remain  a  bailment  after  irrain  com- 
mingled,   Minn.  380,  N.  D.  616 

continues  a  bailment  while  goods  stored,  when, la.  220 

contract  of  storage  held  a  bailment, la.  220 

holding  option  to  purchase,  a  sale, la.  219 

facts  constituting  a  bailment, Mich.  371 

where  contract  of  sale  is  executory,  bailment  continues  until  delivery, 

N.  Y.  578 

ivheat  left  to  be  ground,  a  bailment, I  o-  794 

where  grain  commingled  transaction  becomes    a  sale, 

III.  168,  Minn.  AS2,  Ohio,  646 

facts  constituting  a  sale, HI-  L59,  Minn.  432 

u>hat  constitutes  a  sale, '  '''•       ' 

option  to  pay  for  in  money  or  other  property,  sale Mo.  491 

holding  in  cars  to  await  better  price,  -fale, /"'/■   199 

agreement  to  deliver  flour  for  wheat  deposited,  a  sale Intl.  199 

right  to  reject  cotton,  .sale, ' '*'•       ' 

option  to  buy  does  not  make  it  a  sale, Minn.  432 

BAILOR, 

personally  liable  for  charges  if  property  fail  to  sell  for  sufficient  to 
pay  same N.C.606 


846  INDEX. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

BANKS.     See  also  NATIONAL  BANKS.  page 

conducting  a  warehouse,   when, //;.   163 

not  to  make  loans  to  one  borrower  in  excess  of  25%  of  capital.  .Mo.  487 

BILLHEADS, 

notice  that  warehouse  is  licensed  mu.st  appear  thereon, Va.  791 

BILLS  OF  LADING.     See  also  WAREHOUSE   RECEIPTS;    STOR- 
AGE RECEIPTS. 

IN    GEXERAL. 

defined, N.  D.  620,  Wash.  797 

statute    defining,    construed, Wash.  797 

definition  of, La.  307,  Me.  313,  Mass.  349 

is  not  a  contract, Q-^g    ggg 

both  a  contract  and  a  receipt, ]f^[Q    497 

not  to  be  issued  unless  goods  have  been  actually  .shipped,.  .  .  .N.  J.  544 

warehouse  act  made  applicable  to, Mo.  459 

consignor  is  ultimately  liable  for  freight, Mass.  349 

effect  of  stipulations  against  loss  by  fire, La.  307 

functions  of, La.  307 

what  constitutes  issuance  of, Md.  316 

upon  assignment  of  by  consignee  right  of  stoppage  in  transitu  termi- 
nates,   Me.  314 

not  to  be  issued  until  goods  actually  delivered, Md.  316 

^chat  actual  notice  of  adverse  interest, Md.  330 

to  be  surrendered  and  cancelled  when  goods  delivered S.  Dak.  748 

to  be  cancelled  when  goods  delivered,  penalty  for  faihire  to  do  so, 

N.  D.  623 

a  pledge  may  be  made  by, Ky.  277 

for  grain  converted  by  ivarehouseman,  when  pledgee  protected, .  .  Minn.  445 

what  it  must  contain, Kan.  249 

amount  of  shortage  allowable, Kan.  249 

when  pledge  by  ineffectual,  after  delivery  of  goods, Ja.  225 

transfer  without  indorsement,  equitable  title  passes, Ark.     33 

exemption  in  "forwarders  only"  not  valid, D.ofC.     91 

time  of  delivery  not  to  be  shown  by  parol, Ga.  122 

notice  to  purchaser  of,  necessary  to  defeat, Ga.  122 

stands  for  the  property, Ga.   122 

delivery  without  return  of,  waiver, Ga.   120 

carrier  liable  if  delivery  made  without  return  of Gn.   120 

no  warranty  of  title, Fla.     94 

not  to  be  issued  until  goods  are  in  carrier's  control, Ark.     28 

partial  delivery  to  be  indorsed  thereon, Pa.  688 

carrier  exonerated  by  delivery  of  freight  to  holder  of, N.  D.   621 

delivery  to  holder  of  original,  exonerates  carrier, W^ash.  801 

may  be  signed  by  an  agent, Wis.  813 

rights  and  liabilities  of  carriers  not  affected  by,  when, Wash.   801 

knowledge  of  the  statements  in,  presumed  from  acceptance,.  .  .  .  Tenn.  759 
when  possession  of  not  equivalent  to  possession  of  the  property  itself, 

Tenn.  759 


INDEX.  847 

References  to  laws  are  printed  in  roman.     Those  to  decisions  arc  in  italics. 

BILLS  OF  LADING  in  general— Coniinitcd.  page 

selling  goods  without  consent  of  holder  of,  penalty S.  Dak.  747 

if  mistake  made  penalites  not  incurred, M(jnt.  501 

carrier  not  estopped  to  deny  as  to  third  p(rsous  thnl  goods  were  re- 
ceived,   \rk.     33 

statement  of  value  is  binding  on  shipper, Conn.     Si 

if  issued  in  name  of  fictitious  person,  there  cannot  be  a  bona  (ide 

holder, Ala.     19 

carrier  must  give  sets  of,  on  demand, N.  D.  020 

obligations  of  carriers  not  altered  by, N.  1 ).  020 

when  must  be  surrendered  and  cancelled  unless  marked  uon-nc^io- 

tiable, X.  y.  5(10 

effect  of  statement,  received  "iri  good  order," /a.  225 

"good  order"  construed, J\Je_  314 

in  "apparent  good  order"  refers  only  to  external  conditions, \rk.     33 

when  .statements  on,  as  to  condition  of  goods  not  receivable, Ga.  121 

when  statement  "contents  unknown"  will  not  jrrotect  carrier,.  .  .  .Cal.     01 
when  one  issuing  not  liable  when  contents  of   packages  are  not  as 

described, S.  Dak.  747 

"inevitable  accident"  in,  means  "act  of  God," Mt.ss.  453 

names  on  not  conclusive  as  to  ownership, Miss.  453 

conclusive  evidence  of  their  contents, ild.  315 

to  what  extent  parol  testimony  admissible, Mo.  407 

parol  proof  admissible  so  far  as  it  is  a  receipt, Ind.  209,  Me.  314 

parol  evidence  not  receivable,  so  far  as  it  is  a  contract, la.  225 

parol  evidence  admissible  to  vary  terms  of, Ore.  086 

when  terms  may  be  explained, Conn.     81 

a  parol  supplementary  agreement  may  be  shown, Md.  331 

evidence  admissible  to  show  goods  were  never  received, Md.  331 

evidence  receivable  to  show  goods  were  never  received  even  after  nego- 
tiation of, A.  C.  012 

indicates  only  prima  facie  ownership  in  consignee, Tex.  770 

penalty  for  making  false  bill  of  lading,  manifest,  etc., N.  D.  021 

effect  of  indorsement  of, Xeb.  539 

transfer  of,  vests  legal  title  in  transferee, Ky.  285 

indorsement  to  third  person  makes  him  consignee, Ga.   122 

indorsement  necessary  to  maintain  action  on, Ga.  121 

may  be  transferred  by  delivery  without  indorsement,  when,  X.  D.  020 
transfer  of  property  by,  complies  with  statute  of  frauds, Mont.  504 

BILLS  OF  L.iDING. 

AS    COLLATERAL. 

rights  of  pledgee,  ^t.  777,  IT  .  1  a.  810 

fraud  on  part  of  bank  director  not  imputable  to  bank, .Ua.vs.  350 

holder  may  recover  of  one  who  converts  property  represented,.  .Mass.  350 

BILLS  OF  LADING. 

BONA    FIDE    HOLDER. 

cannot  be,  if  issued  in  name  of  fictUious  fxrson, Ala.     la 


848  INDEX. 

References  to  laws  are  printed  in  ronian.     Those  to  decisions  are  in  italics. 
BILLS   OF  LADING.  page 

DUPLICATES. 

must  be  so  marked, S.  Dak.  747,  Wash.  801 

carrier  liable  if  duplicate  originals  issued, Kan.  254 

conditions  under  which  may  be  issued,  . .  . '. Md.  317 

when  issuance  of,  prohibited, Ark.  28,  Md.  317 

when  must  be  issued, Kan.  249 

BILLS  OF  LADING. 

EXEMPTIONS  IN. 

are  not  favored  by  the  courts  and  are  strictly  construed, Tcnn.  759 

assent  to,  implied  by  acceptance, Colo.  72 

effect  of  acceptance, Ga.  121 

effect  of, N.  Mex.  550 

what  valid, Conn.  82,  Kan.  253,  Md.  331 

burden  on  carrier  to  show  loss  within, Mass.  349 

carriers  may  reduce  their  liability  by, Miss.  453 

limitation  of  liability  as  to  value,  valid, Cal.  61 

what  contrary  to  law, Ga.  121 

limitation  of  time  when  notice  of  loss  must  be  given,  void, N .  C.  611 

cannot  protect  carrier  against  unreasonable  delay, N.  C.  612 

measure  of  damages  where  bill  of  lading  attempts  to  fi.v  damages, 

Tenn.  759 

when  a  stipulation  against  liability  for  fire  is  valid, Tenn.  758 

effect  of  conditions  printed  on  back, Vt.  776 

not  valid  against  fraud,  negligence  and  misfeasance, 

Colo.  73.  Me.  314,  Mass.  350,  La.  707,  Tenn.  759 
BILLS  OF  LADING. 

FRAUDULENT. 

penalty  for  issviance  of, 

Mont.  501,  Neb.  532,  N.  Y.  559,  N.  D.  621,  Ohio,  635,  S.  D.  746,  Wis.  819 

BILLS  OF  LADING. 

NEGOTIABILITY. 

declared  so  by  statute, '. Ark.  28,  Wis.  813 

effect  of  transfer, Del.  85,  Kan.  254,  Mich.  374,  Mo.  497 

equitable  title  passes  ivhen  transferred  without  indorsemeiit, Ark.  27 

legal  title  passes  by  assignment  of, Me.  314 

delivery  while  outstanding,  penalty, S.  Dak.  748 

title  passes  by  delivery  as  against  attaching  creditor  of  vendor, .  .  .S.  C.  729 

all  the  title  of  first  holder  passes  to  subsequent  transferees, .  .N.  D.  620 

transfer  the  same  as  of  warehouse  receipt, Cal.  62 

if  drawn  to  bearer,  it  passes  by  delivery, Wash.  800 

transferee  deemed  the  owner  of  property  represented, 

Minn.  382,  Ore.  677,  i?a.  688,  Wash.  800,  Wis.  820 

assignment  of,  transfers  the  property,  .  .  .  .la.  225,  Mass.  349,   Tenn.  759 

all  title  passes,  same  as  with  bill  of    exchange, 

Md.  315,   Mo.  457,  Wash,  800 

are   not   negotiable   paper, 

Ga.  122,  Ky.  285,  La.  307;  Mass.  350,  Pa.  704,  Tex.  Ill 


INDKX.  H49 

References  to  laws  are  printed  in  roman.     Tho.sc  to  decisions  are  in  italics. 
BILLS  OF  LADING. 

I'AGE 
NON-NEGOTIABLE. 

to  be  SO  marked, Mo.  ir,,S,  I'.i.  (iss,  S.  Dak.  748 

BILL  OF  SALE, 

of  propertij  against  which  receipts  had  been  issued,  rjjcrl, 1//////.    112 

delivery  to  warehouseman  passes  title  to  goods, C ■„/      .^^ 

BOARD  OF  APPEALS.     See  also  APPEAL. 

bond  to  be  given  by  members  of, .Miim  V^7 

for  inspection  of  grain,  act  establishing, Minn.  ■J2.') 

qualifications   for  membership, .Minn  12H 

oath  to  be  taken  by  mem])crs  of, Minn.  127 

when  appeal  may  be  made  to, Minn.  426 

BOARD  OF  APPRAISERS, 

duties  of,  where  land  condemned  for  warehouse  sites, S.  Dak.  744 

BOARD  OF  ARBITRATION.    See  also  ARBITRATION  COMMITTEE. 

when  appeals  may  be  made  to, Mo.  474 

BOARD  OF  COMMISSIONERS.     See  also  RAILROAD  AND  WARE- 
HOUSE COMMISSION. 

personnel    of, ( )kla.  668 

to   inspect    warehouses, ( )kl;i.  671 

to  make  rules  governing  the  inspection  of  grain Okla.  668 

to  make  rules  governing  arbitration  committee, Okla.  671 

to  fix  compensation  of  inspectors  of  grain, Okla.  669 

shall  cause  prosecutions  to  be  made  for  Aiolations  of  warehouse 

act, Okla.  671 

to  direct  county  attorney, Okla.  673 

to  inspect  books,  records  and  papers  of  pulillc  wareliousenion,  ( )khi.  ()72 

may  compel  attendance  of  witnesses, Okla.  672 

to  make  yearly  reports  to  governor, ( )kla.  671 

reports  to  be  made  by  warehousemen  to, Okla.  663 

refusal  to  obey  subpojna  issued  by  penalty, Okla.  673 

BOARD   OF    RAILROAD   COMMISSIONERS.     See  also  RAILROAD 
COMMISSIONERS. 

BOARD    OF   RAILROAD  AND  WAREHOUSE  COMMISSIONERS. 
See  RAILROAD  AND  WAREHOUSE  COMMISSION. 

BOARD  OF  TRADE, 

rules  of,  as  to  warehouse  receipts  not  impairetl  l)y  warehouse  act, 

Wi.s.  S24 

its  right  of  inspection  oj  grain, Knn.  251 

cannot  invoke  infiinction  unless  private  rights  invaded, Kan.  2.51 

gambling  transactions  on,  void  warehouse  receipts, In.  223 

may  require  statements  from  warehousemen, Kan.  244 

to  issue  licenses  to  public  warehousemen, Kan.  239 

54 


850  INDEX. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

BOARD  OF  TRANSPORTATION,  page 

duty  of,  to  enforce  warehouse  act, Neb.  525 

to  appoint  warehouse   registrar, Neb.  517 

to  exercise  general  supervision  over  inspection  of  grain, Neb.  517 

may  require  verified  statement  from  warehousemen  a',  any  time, 

Neb.  525 

to  appoint  state  weighmaster, Neb.  530 

may  examine  warehousemen's  books, Neb.  526 

to  estabUsh  grades  of  grain, Neb.  528 

to  fix  fees  for  the  weighing  of  grain, Neb.  531 

to  appoint  a  committee  of  appeals, Neb.  528 

may  subpoena  and  examine  witnesses, Neb.  52G 

to  make  rules  for  charges  for  inspection  of  grain Neb.  517 

to  make  rules  governing  inspection  of  grain, Neb.  516 

to  adopt  rules  for  weighing  of  grain, Neb.  531 

additional  duties  of,  defined, Neb.  525 

BOGUS, 

grain  inspectors,  penalty, Neb.  522 

BOND, 

to  be  given  by  public  warehousemen, 

111.  130,  Kan.  240,  Mass.  332,  Minn.  379,  385,  Mo.  455,  461,  Neb. 

511,    N.  C.  602,   S.  C.  715,  S.  Dak.  732,  Tex.  761 

terms  of, Ky.  259 

aU  given  pursuant  to  warehouse  act  to  file  with  state  auditor,  S.  D.  738 

warehousemen  must  file  with  clerk  of  district  court, La.  291 

of  public  warehousemen,  to  be  filed, N.  D.  615 

to  be  filed  in  county  clerk's  office, Ky.  259 

suits  on  warehouseman's  bond,  111.  144,  Ky.  259,  Mass.  332,  Neb.  523 

pergon  injured  by  violation  of  warehouse  act  may  sue  on, Mo.  471 

warehouseman  liable  upon,  for  violation  of  warehouse  act,.  .Okla.  667 

public  warehousemen  liable  on, S.  C.  715 

amount  of  warehouseman's  bond  to  be  puljlished, Mass.  334 

amount  of,  to  be  graded  according  to  capacity  of  warehouse,.  .Mo.  461 

of  public  warehousemen,  amounts  of Okla.  657 

of  weighmasters, Mo.  480 

to  be  given  by  tobacco  inspectors, iMd.  320,  Mo.  481,  Ohio,  637 

to  be  given  by  proprietor  of  tobacco  warehouse, Ohio,  636 

failure  of  proprietor  of  tobacco  warehouse  to  give,  penalty, .  .  Ohio,  643 

required  of  samplers  of  tobacco, Va.  781 

of  grain  inspectors, 111.  136,  Kan.  233 

of  chief  inspector  of  grain, Minn.  394,  Mo.  472,  Okla.  667 

of  assistant  and  deputy  grain  inspectors, 

Kan.  233,    Minn.  395,  Okla.  668 

of  inspector  and  weigher  of  grain, Ky.  263 

of  state  weighmaster  and  assistants, 111.  157,  Minn.  394,  Neb.  531 

of  members  of  committee  of  appeals, III.  148,  Neb.  529 

to  be  given  by  members  of  board  of  appeals, Minn.  427 


INDKX.  851 

Reference.,  to  latr.,  are  printed  in  roman.     Those  to  decisiom  arc  in  italics. 

BOyiD— Continued. 

of  railroad  and  warehouse  commissioners, HI.   1.^,1 

icarehouseman  entitled  to,  in  cane  of  garni.shmenl , /'„.  (i<(7 

that  business  a  monopoly,  no  defense  for  sureties, Kij.  273 

in  case  of  lost  or  destroyed  warehouse  receipt, Pa,  a\\ 

BONDS, 

neces.'iary  eare  in  the  safe  keeping  of, )/ j    ;j27 

value  of,  at  time  of  conversion,  measure  of  damages, Md.  329 

BONDED  WAREHOUSES, 

sureties  released  if  sale  for  duties  be  postponed, .V.  ]\  572 

statute  providing  that  stored  goods  are  at  owner's  risk,  only  protects 

the  government, V    1'    571 

one  accepting  receipt  over  a  year  old,  not  Ijona  fide  holder, .V.  1'.  571 

distiller  only  to  issue  receipts, Ky.  271 

statement  on  receipt  that  liquor  is  in  "free  warehouse"  binding  on 

warehouseman, y    }'    r^c^^ 

effect  of  withdrawal  when  negotiable  receipt  outstanding, .V.  5'.  571 

vendor's  lien,  destroyed  by  goods  being  placed  therein, Mo.  492 

fraudulent  withdrawal  of  spirits,  effect, Mass.  342 

presumption  as  to  government  officials  being  in  charge Mass.  342 

appointment  of  government  storekeeper  does  not  lessen  liability  of 

warehousemen,   j^,,    277 

warehouse  act  applies  to  ganger's  receipt, Ind.   196 

statutory  requirements  as  to, Ga.     90 

insurance  of  property  in, Qa      97 

receipts  must  be  given, Qa.     97 

receipts  negotial^le, Ga.     9S 

sale  for  storage  charges, Ga.     98 

disposition  of  unsalable  property, Ga.  101 

penalty  for  unla^^iul  disposition  of  goods, Ga.   100 

depositor  liable  for  storage  charges, Ga.  101 

books  to  be  kept, Ga.     98 

notice  of  sale  for  storage  charges, Ga.     99 

BOOKS, 

of  public  warehousemen  subject  to  inspection, 

Mass.  334,  Mo  -176,  Xeb.  520,  X.  C.  603,  Okla.  072 

what  they  must  show,  bonded  warehouses, Ga.     98 

warehousemen's  best  evidence  as  to  weight  of  stored  cotton, (la.   1 12 

to  be  kept  bj^  inspector  of  tobacco, Mo.    isi 

railroad  and  warehouse  commission  may  examine, 111.   153 

what  mast  appear  on  -vwarehouseman's  book  of  entr^', S.  C  718 

of  sales  of  unclaimed  property  to  be  kept  by  carrier, S.  C.  721 

"BOUGHT  OF," 

effect  of,  in  a  warehouse  receipt, la.  220 


852  INDEX. 

References  to  laws  arc  printed  in  romaii.     Those  to  decisions  are  in  italics. 

BRANDS  AND  MARKS,  tagk 

receipt   must  show  brands   and   distinguishin*::;  marks, 

Cal.  43,  lU.  144,    Ind.  189,   la.  211,   Ky.  255,   S.  C.  716,   Tex. 

762,  Wis.  821 

must  appear  on  cotton  receipts, La.  305 

when  warehousemen  not  Hable  if  they  are  false,   N.  Y.  560,  N.  D.  622 
warehouseman  not  liable  if  they  are  false,  provided  due  caution  be 

used, N.  Y.  590 

when  one  who  issues  bill  of  lading  is  not  liable  if  contents  are  not 

as    stated, S.    Dak.  747 

warehouse  receipt  must  represent  specific  goods, La.  305 

identical  goods  m,ust  be  delivered  on  return  of  receipt, R.  L  713 

warehouse  receipts  m,ust  contain,  nature  of, Ky.  283 

the  usual  trade-marks  on  goods  are  not  distinguishing  marks,.  .Ky.  280 

failure  of  state,  effect, ///.   1 75 

no  penalty  for  failure  to  place  on  warehouse  receipt, ///.  145 

failure  to  place  on  wareliouse  receipt  does  not  render  it  void, ///.  145 

penalty  for  changing, Ala.      5 

manner  of  branding  tobacco, Va.  782 

penalty  for  altering  those  of  tobacco  inspectors, Ohio,  639 

penalty  for  the  false  branding  of  tobacco, Va.  783,  789 

"western  tobacco"  to  be  so  branded, Va.  783 

penalty  for  meddling  with,  on  petroleum  oil  casks, R.  I.  710 

penalty  for  putting  kerosene  not  inspected  in  branded  casks,  R.  I.  710 

BREACH  OF  TRUST, 

conversion  by  bailee, D.  of  C.     88 

BRIBERY, 

of  those  in  grain  inspection  service,  felony,  penalty  for, Kan.  237 

BROKERS, 

no  presumption  of  ownership  from  possession  by, La.  298 

delivery  wrongful  if  made  to,  when, Ga.   107 

BULK.     See  GRAIX  IN  BULK. 

BURDEN  OF  PROOF, 

what  plaintiff  must  show  in  action  against  warehouseman, .  .  .  .Mass.  345 

upon  plaintiff  to  show  warehouseman's  negligence, 

Ark.  30,  Cal.  57,  Ky.   278,    La.  303,  Mass.  346,    N.  Y.  580, 

Pa.  699,  700,  Tex.  769,  Wis.  826 

on  the  plaintiff  throughout,  where  negligence  charged, A'.  Y.  583 

on  plaintiff  in  action  for  loss  by  fire, Tenn.  755 

in  cold  storage  contracts, Ind.  204 

when  on  bailee, Ga.  104 

after  proof  of  loss  bailee  must  show  diligence, Ga.  101 

when  prima  facie  ca.se  made,  defendant  has  burden  of  showing  ab- 
sence of  negligence, TT'?s.  826 

on  bailee  to  jjrove  that  goods  were  lost  without  his  fault, Neb.  540 


iN-i>i:x.  853 

References  to  laws  are  printed  in  rnnutn.      Tlio.sc  to  <lecixions  are  in  italia<. 

BURDEN  OF  PROOF— Continue,}.  r\c.K 

on  loarehouaeman  where  he  altempls  to  excuse  non-del ivcry  by  alleging 

loss   bif   fire, .\ .  D.  026 

on  bailor,  what  bailee  must  show  when  goods  hare  been  lost Pa.  GOG 

on  bailee  after  failure  to  deliver  on  demand  is  shown,   N.  Y .  570,  Pa.  701 

rule  as  to  the  shifting  thereof, Afo.  494 

shifting  of,  in  case  of  bailment Cal.     47 

if  deliverij  made  to  one  without  the  receipt,  burden  on  rvarchouseman 

to  show  true  owner, 1/a.  0,  Mi.'<s.  4'»2 

if  defendant  ^varehouseman  allege  manner  of  Ions,  burden  on  him  to 

.'-how  this, Mass.  34G 

where  there  is  a  breach  of  rrj)levin  bond, ///.   171 

on  carrier  ivhere  bill  of  lading  stales  goods  received  in  "good  order," 

Me.  314 
on  carrier  to  show  loss  ivithin  exemption  in  bill  of  lading Ma.'<s.  349 

BURGLARY, 

from  warehouse,  penalty,  Mich.  307,  Ohio.  044 

to  enter  a  wareliou.se, In<I.   197 

BURNING, 

penalty  for  burnhis;  warehouse Mich.   300,  W.  V;i.  SOS,  Wi.s.  SIO 

of  warehouse, I'  la.  93 

of  warehouse  in  night-time,  arson,  penalty, <  >re.  GSO 

BUSHEL, 

weights  of  one  bushel  of  various  conmiodities  fixed  In'  law, .  .  Minn.  424 

CANCELLATION, 

warehou.se   receipts  to  be  cancelled  on  deli\ery  of  grain, 

Kan.  242,  Minn.  3S7,  Neb.  513.  Okla.  002,  S.  C.  71S,  S.  D.  737, 

Tenn.  751,  Wis.  816 
of  bills  of  ladins;  and  warehouse  recei])ts  when  goods  delivered, 

S.  Dak.  74.S 

of  warehouse  receipts,  manner  of, 111.  1  10.  Ky.  200 

of  bills  of  lading,  when  to  be  made, N .  V.  5()0 

warehouse  receipt  void  when  cancelled, Lid.   186 

of  warehousemen's  licenses,  when .\eb.  525 

CARDS, 

to  be  affixed  by  shipper  to  cars  containing  grain, Minn.  406 

CARE.     See  also  ORDINARY  CARE;  EXTRAORDINARY  CARE. 

not  bound  to  a  high  degree  of,  in  the  approaches  to  a  warehouse,.  .III.   162 
when  jrroportioned  according  to  value  of  stored  jrroperty, Md.  327 

CARE  AND  DILIGENCE, 

degrees  of,  defined  by  statute, f"-^-  10^ 

CARRIERS.      See    also    ENPRESS   COMPANIES;    EXPRESSMEN; 
BILLS  OF  L.\DIXG. 
duties  and  liabilities  of, !'>•'»"•  231 


854  INDEX. 

References  to  Imvs  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

CARRIERS — Continued.  page 

have  lien  for  charges, Minn.  380,  Ore.  678,  Wyo.  833 

manner  of  enforcing  lien, Ore.  679 

exonerated  by  delivery  of  freight  to  holder  of  hiU  of  lading, 

N.  D.  621,  Wash.  801 

when  may  sell  unclaimed  property, S.  C.  723 

laiv  requiring  them  to  deliver  unclaimed  property  to  warehousemen, 

unconstitutional, Minn.  446 

liability  ceases  after  storage  of  unclaimed  freight, Colo.     63 

may  store  goods  if  consignee  fail  or  refuse  to  accept, Cal.     39 

must  give  sets  of  biUs  of  lading  on  demand, N.  D.  620 

obligations  of,  not  affected  by  bills  of  lading, N.  D.  620 

not  entitled  to  warehouseman's  license, La.  298 

not  permitted  to  make  combinations  with  warehousemen, 

Okla.  660,  S.  Dak.  739 

discrimination  by,  prohibited,  penalty, S.  C.  723 

authorized  to  issue  warehouse  receipts,  when, Ohio,  634 

liable  if  delivery  made  without  return  of  bill  of  lading, Ga.  120 

maj'  retain  goods  until  charges  are  paid, Cal.  44,  Mo.  486 

requisites  of  sale  of  goods  for  charges, Wyo.  834 

permission  to  build  warehouse  near  tracks  of, Minn.  416 

proceedings  where  warehousemen  fail  to  agree  on  compensation 

for  site  on  carrier's  right  of  way, Minn.  417 

when  they  must  construct  side  tracks, Minn.  414,  S.  Dak.  740 

action  against,  to  compel  operation  of  spur  track, Wis.  814 

penalty  for  failure  to  construct  side  tracks, S.  D.  741 

prohibited  from  hj-pothecating  property  intrusted  to  them,  Ohio,  630 
prohibition  against  sale  of  property  entrusted  to  them  for  trans- 
portation,   X.  Y.  559 

ivhen  not  liable  for  storage  charges  o7i  goods  stored  by  them, R.  I.  712 

penalt}'  for  unauthorized  sale  of  property  by, N.  Y.  560 

obliged  to  receive  grain  in  bulk, Mo.  488 

if  they  refuse  to  handle  grain  at  legal  rate,  pri\-ate  persons  may 

erect  elevators, Minn.  383 

to  furnish  police  protection  of  grain,  when, Minn.  404 

to  furnish  scales  to  weigh  grain  handled, Mo.  479 

liable  for  loss  of  goods  destroyed  by  fire, Mass.  344 

liable  as  warehouseman  if  goods  not  delivered, Cal.     39 

liable  as  warehouseman  on  termination  of  transit, Cal.     53 

who  converts  goods  guilty  of  embezzlement, Colo.     68 

CARRYING, 

warehousemen  liable  for,  when, N.  Y.  563 

CARS, 

of  grain  to  be  examined  by  inspectors  of  grain, Minn.  404 

to  be  closed  and  resealed  after  inspection, Minn.  404 

when  placing  of,  pursuant  to  consignee's  directioiis,  constitutes  a 
delivery  of  contents, la.  225 


INDEX.  855 

References  to  laws  are  pritiled  in  roman.     Those  to  decisions  are  in  italics. 

CARTAGE  CHARGES,  page 

held  to  be  embraced  in  "all  claims  and  lietis," Col.     55 

CASKS, 

the  weighing  aiul  inurking  of, Ivy.  207 

CERTIFICATES.     See  also  WAREHOUSE  RECEIPTS. 

to  authorize  transaction  of  warehouse  lousiness, La.  291 

to  be  obtained  by  pubUc  warehousemen  from  county  court,.  .Tex.  7(11 

for  grain,  when  to  be  issued, Minn.    110 

for  grain,  if  issued  in  duphcate,  to  be  so  marked Minn.    110 

for  grain  to  be  consecutively  numbered, Minn.  410 

full  record  of,  to  be  kept, Ind.  192 

who  may  issue,  besides  warehou.semen, Wis.  821 

form  of  certificate  of  inspection  of  tobacco, Mo.  483 

of  weights  to  be  furnished  by  weighmasters, Minn.  401 

penalty  for  issuing  false,  or  receipts, Ind.  103 

CERTIFICATES  OF  INSPECTION, 

declared  to  be  negotiable, Mo.  485 

CERTIORARI, 

action  of  railroad  and  tvarehouse  commission,  reviewable  on,.  .  .  .III.  103 

CHANCERY  COURTS.     See  EQUITY. 

CHATTEL  MORTGAGE, 

statutes  requiring  recordation  must  be  .strictly  complied  icith,.  .N.  Y.  577 

recordation  of,  constitutes  notice, I '«•     1 1 

iohe7i  recordation  of,  not  notice  to  warehouseman, A','/.  274 

the  purchase  of  a  mortgaged  chattel  not  in  itself  a  conversion, .  .N.  D.  625 
not  valid  as  against  rights  of  lien  holders  under  warehouse  act, 

Wyo.  835 
when  warehouseman's  lien  superior  to,  Mich.  354,  N.  Y.  503,  Wyo.  835 
when  warehouseman's  lien  for  charges  subordinate  to.  Mo.  493,  N.  Y.  570 
statute  pertaining  to  does  not  affect  pledge  of  warehouse  receipts,  Wis.  830 

CHARTER, 

if  provisions  in,  of  exclusive  nature,  unconstitutional, X.C.  012 

CHEATING, 

by  warehousemen  penalties  for, I"cl-   1'-^'' 

CHIEF  CLERK, 

appointment  of,  by  chief  inspector  of  tobacco, Md.  321 

CHIEF  INSPECTOR, 

appointment,  salary  and  bond  of  chief  inspector  of  tobacco,..  .Md.  320 

appointment  of,  of  grain,  qualifications, Mo.  459 

duties  and  rights  of ^'f>-  •*"! 

reports  to  be  made  by  and  duties  of, ^Id.  323 

to  make  oath  and  give  bond M«'-  •^''- 

bond  to  be  given  by, ^I'""-  3^"* 

may  remove  deputy  inspectors  of  grain, Minn.  395 


856  Index. 

References  to  laws  are  jyrinted  in  roman.     Those  to  decisions  are  in  italics. 

CIRCUIT  COURT,  page 

to  issue  licenses  to  pulilic  warehousemen, Mo.  454 

maj'  revoke  warehouse  hcenses, Ky.  259 

right  of,  to  grant  licenses, ///.   \29 

CITY, 

hcense  from,  also  required, Ky .  260 

CLAIM  AND  DELIVERY, 

against  warehouseman  where  he  fail  to  deliver  on  demand,  Minn.  381 

technicaUij  no  such  form  of  action, Cal.  52 

an  auxiliary  remedy, Cal.  52 

CLASSES, 

of  warehousemen  defined  by  statute, Ind.  184,  Neb.  510 

CLASS  A, 

duty  of  warehousemen  of  this  class, 111.  128,  Ind.  185 

manner  of  issuing  warehouse  receipts  from, Neb.  512 

CLASS  B, 

no  provision  for  appointment  of  inspectors  for, ///.   142 

duties  of  warehousemen  of  this  class, 111.   128 

CLASS  C, 

duties  of  warehousemen  of  this  class, 111.  128 

COLD  STORAGE.     See  also  TEMPERATURE. 

the  term  defined, N.  Y.  585 

agreement  as  to  temperature, ///.  172,  X .  Y .  584 

absence  of  express  agreement  as  to  temperature, Conn.     79 

owner  having  knowledge  of  the  temperature,  effect, A^  }'.  584 

burden  of  proof  in  case  of, Ind,  204 

parol  evidence  admissible  to  explain  the  term  as  used  in  warehouse 

receipt, iV.  F.  598 

proper  instrution  to  jury  in  case  of  injury  to  goods  while  so  stored.  Pa.  700 
plaintiff  has  burden  of  proof  when  goods  injured  while  so  stored.  Pa.  700 

what  degree  of  negligence  must  be  shown  in  case  of  injury, Pa.  700 

question  of  decay  of  apples  is  one  for  jury, Minn.  437 

allowing  brine  pipes  to  drip  held  negligence, Minn.  438 

liability  for  injury  from  odors, Ind.  204 

onus  on  defendant  after  prima  facie  case  made  out, Ind.  204 

ivhat  constitutes  prima  facie  case, Ind.  204 

measure  of  damages, ///.  173 

COLORING, 

of  grain  prohibited, Minn.  420 

COMBINATIONS, 

between  carrier  and  warehouseman,  prohibited,   

Kan.  249,  Mo.  464,  Neb.  523,  Okla.  660,  S.  Dak.  731,  739 


INDEX.  857 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

COMBINATIONS— Conimwed. 

to  interfere  witli  bicUliiifz;  unlawful, Ky.  270 

of  warehousemen  unlawful, 111.   114 

COMMINGLING  OF  GRAIN.     See  also  GRAIN. 

not  to  be  done  without  owner's  permission, Minn.  386 

ivhere  flour  to  be  returned  in  place  of  grain,  transaction  is  a  sale,  Mo.  -I'Jl 

when  it  makes  transaction  a  sale, ///.  168,  Minn.  432,  Ohio.  646 

does  not  change  transaction  into  a  sale,  

Ind.  2m, Iowa,  219,  Ky. 272,  Minn.433,N.D.G2i,Ohio,  647,Orc.  682 
declared  by  statute  to  be  a  bailment,  .  .  .Minn.  380,  S.  D.  736,  Va.  779 

segregation  not  necessary  when  a  part  .soW, X.  Y.  578 

owners  are  tenants  in  common, Minn.  436,  Ind.  203 

warehouse  receipt  to  represent  portion  stated  therein, N.  C.  603 

effect  of  subsequent  separation,  replevin, Wis.  827 

when  replevin  will  lie, ///.  168 

replevin  ivill  not  lie  for  portion  of, N.  D.  625 

when  bailee  of  part  of  such  f;;rain  becomes  insolvent, N.  D.  616 

innocent  purchaser  of  grain  protected, Ind.  202 

in  case  of  loss,  to  be  borne  pro  rata, ///.  169,  Ore.  683 

effect  of  mixture  with  grain  of  better  quality, Wis.  828 

different  grades  not  to  be  mixed, 

Minn.  383,  390,  Mo.  463,  Nel).  511,  Wash.  797 

action  of  trover  in  case, Muh.  371 

right  to  maintain  trover  not  affected  by, ///.   169 

when  warehouseman  becomes  insolvent, S.  D.  736 

when  conversion  takes  place  in  case  of, Minn.  434 

does  not  constitute  conversion, la.  220,  Ore.  682 

not  conversion  although  unauthorized, la.  222 

when  it  constitutes   conversion, Ohio,  650 

if  unauthorized  constitutes  conversion, la.  222,  Kan.  252 

conversion  if  less  than  aggregate  mass  in  store, Ind.  203,  TI  is.  827 

where  there  has  been  conversion  equity  has  jurisdiction, Minn.  434 

grain  to  be  stored  with  that  of  same  grade, Mo.  462 

of  equal  grades   allowed, ^^  is.  824 

grain  of  equal  grade  to  be  delivered  on  return  of  receipt,..  .X.  D.  016 
warehousemen  have  an  insurable  interest  in  stored  and  commingled 

grain,    J'^<1-  206 

warehouse  receipt  for  mixed  grain  may  be  pledged, Minn.  436 

what  warehouse  receipt  represents  in  case  of, 

Me.  310,  Mass.  334,  S.  C.  71S 

COMMISSIONS, 

not  allowed  for  paying  money  to  seller Ky.  208 

allowed  for  selling  tobacco  at  auction, Ky.  26S 

COMMISSIONER  OF  AGRICULTURE, 

to  appoint  inspector,  weigher  and  registrar  of  grain, Ky.  262 

COMMISSIONERS.     See    also  l^OARD  OF  COMMISSIONS  ;    K.ML- 
ROAD  COMMISSIONERS. 


858  INDEX. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

COMMISSIONERS  OF  RAILROADS,  page 

rules  of,  regarding  grain,  etc.,  to  be  published, N.  D.  613 

duty  to  supervise  handling  of  grain,  make  rules,  etc., X.  D.  613 

duties  and  powers  imposed  by  warehouse  act,  devolve  upon,  N.  D.  613 

COMMISSION  MERCHANT, 

warehouseman's  liability  not  cliangcd  by  styling  himself  such,.  .  .Ky.  274 

COMMITTEE  OF  APPEALS.     See  also    APPEAL  ;  BOARD  OF  AP- 
PEALS. 

creation  and  personnel  of, 111.   147 

creation  of,  term  of  office, Neb.  528 

power    of, III.  147 

appeals  to,  from  chief  inspector  of  grain, Neb.  529 

who  may  serve  on,  oath,  and  bond, 111.  148,  Neb.  529 

COMMODITIES, 

weights  per  bushel  of  certain,  fixed  by  law, Minn.  424 

COMMON  CARRIERS.     See  CARRIERS. 

COMMON -LAW, 

remedies  at,  not  impaired   liy   warehouse  act,   

111.  145,  Mo.  478,    Neb.  524 

COMMON  PROPERTY, 

depositors  have,  when  goods  are  commingled, III.   169 

COMMONWEALTH, 

action  on  warehouseman's  bond  to  be  brought  in  the  name  of,  Mass.  332 

COMPENSATION, 

of  grain  inspectors, Ind.  191,  Neb.  517,  Okla.  669 

to  be  paid  carrier  for  construction  of  warehouse  on  its  right  of  way, 

Minn.    416,    S.    Dak.  742 

of  .state  weighmaster  and  assistants, 111.  157,  Mo.  480,  Neb.  531 

allowed  for  selling  tol^acco  at  auction, Ky.  268 

COMPLAINT, 

xohat  it  must  contain  i?i  an  action  for  conversion , Ind.  202 

COMPLAINTS, 

against  inspectors  of  grain,  how  made, Minn.  412,  Mo.  474 

COMPROMISE, 

when  valid  agreement  7nade  other  defenses  l/arrrd. Colo.     71 

CONCEALING  COTTON, 

liability  of  warehouseman  for, Ala.       5 

CONDEMNATION, 

of  land  for  warehouse  sites,  procedure, S.  Dak.  744 

CONDITION, 

warehouseman's   duty   when   grain   becoming   out   of   condition, 

Minn.  390,  Mo.  468,  Neb.  519,   Okla.  664 


INDEX.  859 

References  to  laws  are  printed  m  roman.     Those  to  decisions  are  in  italics. 

CONDmON —Continued.  page 

of  property  must  be  stated  in  receipt, Ala.       1 

when  statement  on  bill  of  lading  as  to,  not  receivable, (id.  121 

statement  as  to,  made  to  original  a.'<signor,  imtrrs  to  Ijcnrfit  of  a.v- 
signee, ///    177 

CONDITIONAL  SALE, 

warehouseman's  lien  superior  to  a  chattel  mortgage  given  under, 
when, N.  Y.  riOS 

CONDITIONS, 

shall  not  be  inserted  on  warehouse  receipts,  bills  of  kidiiiir,  etc., 
restricting  negotiability, Mo.  •ir,7 

CONSIDERATION, 

extension  of  loan  sufficient,  for  issuance  of  irarehou.ie  receipt Ki/.  2S2 

pre-e.risting  debt  good  for  transfer  of  warehouse  receipt, Cal.     59 

CONSIGNEE, 

has  no  authoritij  to  pledge  bill  of  lading  of  goods  sent  subject  to  his 

order, Mass.  350 

is  agent  of  oumer, Ala.       8 

fraud  on  the  part  of,  penalties, Neb.  532 

to  have  lien  on  shipped  property, Ohio,  G2S 

duty  of,  upon  receipt  of  property, Wis.  81 1 

when  may  sell  goods  for  freight  and  storage  charges, Mi.ss.  44S 

must  keep  record  of  property, Minn.  375 

may  recover  full  damages  for  loss  of  goods, Mass.  347 

CONSTITUTION, 

provisions  of,  pertaining  to  warehousemen, 111.   120 

CONSTITUTIONAL  LAW.     See  also  POLICE  POWER. 

warehouse  act  held  constitutional, Tenn.  700 

failure  to  specifically  mention  penalties  in  the  title  of  the  warehouse 

act ;   law  valid, Ore.  686 

penal  sections  of  warehouse  act  covered  by  title, ///.  182 

sections  in  warehouse  act  imposing  penalty  for  fraud  germane  to 

subject  thereof, ^^o.  498 

act  providing  for  purchase  of  site  for  warehouse  at  Dululh,  held  un- 
constitutional,   Minn.  403 

act  authorizing  the  taking  of  land  for  warehouse  site  uncon.'^titutional, 

N.y.  599 

erection  of  warehouse  on  public  ground  permitted, Mo.  499 

act  prescribing  rates  of  storage,  constitutional, 

III.    127,   -V.    r.   601.    -V.   D.  620 
act  requiring  license  and  prescribing  rates  of  storage,  con,<itilutional, 

III.    182.    Mo.  499 
charter  provisions  fixing  liability  of  warehouse  company  to  thai  ex- 
pressed  on  receipts,   unconstitutional, A .  C.  612 


860  INDEX. 

References  to  laws  are  jrrinted  in  roman.     Those  to  decisions  are  in  italics. 

CONSTITUTIONAL  LAW— Continued.  pack 

copy  of  provision  in  charter  of  icarehouse  company,  ichich  was  held 

unconstitutional, N .  C .  612 

State  prohibited  from  going  into  grain  business, Minn.  446 

requiring  carriers   to  deliver  to  public  warehouses  uncalled  for  prop- 
erty,   unconstitutional Minn.  446 

where  one  owning  warehouse  and  all  grain  stored  compelled  to  pro- 
cure license,  held  this  not  violative  of  the  constitution, Minn.  446 

act  prohibiting   warehousemen  from  being  made  defendants   in 
certain  cases  held  unconstitutional, N.  Y.  552 

CONSTRUCTION, 

ivarehouses  need  be  only  of  reasonably  ayxd  ordinarily  safe  construc- 
tion,   Mi.^s.  450 

" CONTENTS  UNKNOWN," 

ichen  statement  will  not  protect  carrier, Cal.     61 

CONTRACTS.     See  also  STORAGE  CONTRACT. 

between  warehouseman  and  depositor,  how  ascertained, Tenn.  753 

when  implied,  to  pay  for  storage, S.  C.  727 

of  insurance  by  warehousemen, Pa.  699 

warehouseman's  liability  for  breach  of  contract  to  insure, Tenn.  757 

to  keep  stored  property  insured,  construction  of, Tenn.  756 

a  warehouse  receipt  is  one  of  bailment, hid.  207,  Tenn.  758 

special  contracts  may  be  made  for  storage,  etc., Wash.  802 

extent  to  ichich  bailee's  liability  7nay  be  changed  by Vt.  775 

effect  of  executory  contract  of  sale  of  unscgrcgated  part  of  goods,  N.  Y.  578 

if  conversion  be  icaived  suit  may  be  on  implied  contract, Ind.  202 

in  ^\Titing  assignable  by  indorsement, Ala.  6 

CONTROL, 

warehousemen  must  keep  goods  under, Colo.     67 

CON  \  'ERSION .     See  also  BA I  LEE. 

what  constitutes, Mo.  492 

actual  conversion  and  intention  essential, Mich.  368 

action  at  law  should  be  brought  for,  not  one  in  equity, Md.  328 

intermeddling  unth  other's  property  does  not  necessaribj  constitute,  Cal.     49 

essential  to  show  demand  before  action  brovght, N .  D.  624 

demand  necessary  before  action  brought, Tenn.  753 

when  demand  unnecessary  before  action  brmght, N .  D.  625 

when  demand  and  refusal  need  not  be  shown  in  an  action  for,.  .  .  .Pa.  697 

what  makes  a  prima  facie  case, N.  D.  624 

either  bailor  or  bailee  may  sue  third  person  for, Ga.  103 

if  delivery  not  made  to  bailor  or  to  his  order  it  constitutes, Ky.  277 

sale  of  all  of  commingled  grain  constitutes, Wis.  827 

when  it  occurs  where  g^^ain  mixed, Minn.  434 

commingling  does  not  constitute, la.  220 

commingling  is  not,  although  unauthorized, la.  222 


INDEX.  861 

References  to  laivs  are  printed  in  roman.     Those  to  decisions  arc  in  italics. 

CON  VERSION— Continued.  paqe 

the  commingling  of  grain  is  not, Ore.  682 

when  the  mixing  of  grain  amounts  to, Ohio,  G50 

if  commingling  is  contrary  to  instructions  it  amounts  to, Kan.  252 

unauthorized  commingling  is, la.  222 

if  warehousemen  violate  instructions  as  to  manner  of  shipping  in-op- 

erly  and  loss  follows, Wis.  S20 

no  equity  jurisdiction  in  case  of, 11'.  la.  SO*,) 

delivery  to  bailor  after  notice  of  real  owner's  claim,  rule  .stated,.  .  Tex.  707 
when  removal  of  goods  by  bailee,  under  bailor's  orders,  constit^des,  Tex.  706 
wrongful  sale  constitutes  a  conversion,  both  by  bailee  and  jmrchaser, 

Vt.  776 

the  purchase  of  a  mortgaged  chattel  is  not, N.  D.  625 

depositary  liable  for  value  of  property  converted, La.  299 

ivhere  bailee  parts  with  goods  without  bailor's  consent, Tenn.  753 

sale  by  bailee  constitutes, Ky.  275 

sale  of  goods  by  luarehouseman's  son, Ark.     30 

that  it  was  the  custom  of  warehousemen  to  ship  grain  at  certain  season, 

no  defense, Ore.  682 

delivery  to  receipt  holder  when  chattel  mortgage  on  goods  constitutes 

conversion, Ala.     11 

when  mortgagee  may  maintain  action  for,  against  warehousemen,  Cal.     50 

innocent  redelivery  of  stolen  property  by  bailee,  not, Conn.     79 

if  warehouseman  parts  with  possession  of  goods  without  depositors 

consent, Ore.  682 

improper  sale  for  storage  charges  constitutes,  Cal.  54,  Ind.  202,  N.  Y.  568 

authority  to  receive  offers  does  not  carry  poicer  to  sell, Ma.ss.  3tl 

when  delivery  to  holder  of  receipt  constitutes, Ahi.     1 1 

sheriff  liable  for,  if  goods  sold  for  storage  charges, Cal.     54 

delivery  to  officer  pursuant  to  attachment  is  not, Ma.'^s.  340 

delivery  pursuant  to  order  of  one  not  owner  constitutes,  N.  Y.  583,  Ore.  683 

refusal  to  deliver  on  demand  constitutes, N.C.  609 

refusal  to  deliver  on  demand  does  not  alone  constitute, Cal.     49 

is  shown  ivhere  there  is  a  tender,  a  deynand  and  a  refusal, Ind.  201 

an  unqualified  refusal  to  deliver  coristitutes, A  .  1  .  568 

presumed  where  bailee  fails  to  deliver  on  demand, 

Ala.  9,  Nev.  540,  A'.  C.  609 

effect  of  refusal  to  deliver, ■'^  f'^-  •'537 

persistent  refusal  to  deliver  constitute.^, Cal.     49 

warehousemen  may  excuse  refusal  to  deliver  by  evidence  of  justifiable 

inability, Cal.     49 

delivery  by  warehouseman  without  return  of  receipt R.I.  713 

delivery  when  claim  of  third  person  known, Cal.     50 

bailee  may  set  off  amount  of  claim  secured  by  lien A'. ./.  548 

measure  of  damages,  where  willful  and  where  not Minn.    138 

of  properly  held  for  better  prices,  measure  of  damages La.  303 

measure  of  damages  in  case  of, 

III.  173,  Ky.  278,  Mass.  347,  A'.  )'.  oSO   /.'.  /.  713 


862  INDEX. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

CONVERSION— Continued.  page 

a  refusal  to  deliver  property  to  rightful  owner  constitutes, N^eb.  536 

must  be  shown  before  trover  vnll  lie, Ala.     13 

unauthorized  sale  by  pledgee  is, N.  Y.  580 

ivhen  disregard  of  orders  to  sell,  not, Ga.  106 

judgment  for  storage  charges  not  a  bar  to  an  action  for  conversion , 

N.  Y.  569 
false  statement  that  goods  had  been  sold  for  storage  charges,  con- 
stitutes conversion, Cal.     50 

statute  of  limitations  runs  from  date  of  adverse  liolding  by  bailee,  Ga.  104 

of  property  by  warehouseman,  holder  of  receipt  protected, Minn.  441 

by  warehouseman,  findings  of  court  on  appeal, Minn.  445 

of  stored  grain,  bank  honoring  draft  xvith  bill  of  lading,  bank  pro- 
tected,   Minn.  445 

agent  of  warehouseman  who  assists  in,  personally  liable, Minn.  434 

pledge  by  bailee  constitutes, Colo.     69 

pledgee  of  bill  of  lading  may  recover  of  one  who  converts  property 

represented, Mass.  350 

refusal  to  deliver  unless  receipt  surrendered,  is  not, Ga.  1 19 

of  grain  by  bank  running  a  warehouse, ///.  163 

adverse  interest  must  be  asserted  by  bailee, Ky.  275 

if  tort  waived,  demand  must  be  made  for  price  received, Ind.  202 

defined  to  be  a  tort, Cal.     49 

misjoinder  of  parties  in  case  of, Kan.  250 

plaintiff  must  be  owner  or  entitled  to  possession, Ind.  202 

what  complaint  should  contain  in  an  action  for, Ind.  202 

action  in  assumpsit  for, ///.   1 62 

variance  between  date  in  pleading  and  evidence  not  material, ....  Cal.     50 

not  embezzlement, D.  of  C.     88 

wrongful  conversion  by  bailee  deemed  larceny,.  .N.  H.  541,  Ore.  680 

CORPOR.\TIONS, 

authorized  to  do  warehouse  business  may  become  public  ware- 
housemen, how, N .  C.  602 

formation  of,  for  construction  and  maintenance  of  warehovises,  Kan.  227 

when  contracts  of,  void, Ind.  201 

warehouse  companies'  powers,  limit  of  property,  etc., Mich.  361 

laws  applicable  to  warehouse  companies, Mich.  362 

CORRESPONDENCE, 

when  receivable  to  show  contract  of  storage, Minn.  435 

COSTS, 

when  warehousemen  not  to  be  liable  for  taxcid  costs, N.  J.  547 

suit  to  subject  freight  to  payment  of, Ohio,  632 

in  case  of  appeal  to  board  of  appeals,  how  borne, Minn.  427 

of  trial  where  warehouse  to  be  erected  on  carrier's  riglit  of  way, 

Minn.  418 


INDKX.  803 

References  to  law.s  arc  prinUil  in  raiitun.     Thuxc  to  dccinioius  are  in  ilalioi. 

COTTON,  J'AOE 

warehouse  for  storaf:;e  of,  may  l)c  an  inclosed  parcel  of  land,.  .Tex.  7()1 

no  allowance  for  tare  to  be  made, S.  C.  72 1 

charges  for  storage  of,  and  weij^hinfi,  fixed  by  law, S.  C.  725 

luarchoiiscman  has  not  lien  on,  >ni({rr  sec.  2riSs2,  Codr,  lsn2,.  .  .Miss.  •l.'iO 
piling  of,  near  railroad  track,  tugligcncc, Irk.     31 

COTTON  NOTES, 

transfer  of,  equivalent  to  transfer  of  the  properti/, .M<>.    lOH 

COTTON-PRESS  RECEIPTS, 

property  must  be  in  store  prior  to  i.ssuancr La.  2s(] 

conditions  under  which  chiplicalos  may  be  issued, La.  2s7 

COUNSEL  FEES, 

when  recoverable  against  warehouseman;  duplicate  receipts, Ky.  285 

COURTS, 

will  review  on  certiorari  action  of  u-areliouse  cornmission, ///.   1(»:} 

COUNTY  AUDITOR, 

cannot  authorize  a  manufacturing  corporation  to  do  warehouse  busi- 
ness,   Ind.  201 

COUNTY  ATTORNEY, 

duty  of,  to  prosecute  violations  of  warehouse  act,  Neb.  527,  Okla.  GG7 

board  of  co;umissioners  to  direct,  when, ( )kla.  (573 

duty  to  prosecute  for  railroad  and  warehouse  commission,  Minn.  31)9 

COUNTY  CLERK, 

to  issue  certificates  to  public  warehousemen, Tex.  701 

license  to  be  procured  from, Ky.  2")'.) 

COUNTY  TREASURER, 

duties   of,    concerning   proceeds   of  sale   of   unclaimed   property, 

Minn.  377,  Wjush.  S05 
to  hold  balance  of  proceeds  from  sale  of  unclaimed  property.  Neb.  507 
to  receive  surplus  from  sale  for  storage  charges,  Iowa,  217,  Mich.  358 
affidavit,  order  of   sale    and  inventory  to  be  delivered  to,  when 

unclaimed  property  sold, Midi.  3('>4 

to  be  sealer  of  weights  for  county, Minn.    121 

COUNTRY  WAREHOUSES, 

reports  to  railroad  and  warehouse  conmiission, Minn.    113 

rules  governing  ratus  to  be  charged  in,  etc., Miim.  40.S 

limit  of  charges  to  be  made  in Minn.    lOS 

unfairness  in  inspection  of  grain, Minn.    112 

pooling  agreements  between,  unlawful, Miiui.  413 

COURTS  OF  CHANCERY.     See  EQUITY. 

CREDIT, 

sale  on,  when  instructed  to  sell  for  cash,  not  a  conversion, (ia.  KXi 


8G4  INDEX. 

References  to  laws  are  printed  in  roinan.     Those  to  decisions  are  in  italics. 

CREDITORS,  PAGE 

a  warehouse  receipt  issued  by  a  debtor  against  his  oirn  goods  is  void 

as   to, Ohio,  651 

bound  to  ktiow  powers  of  a  corporation, Ind.  201 

CRIMES.     See  also  CRIMINAL  LAW. 

against  warehousemen, Ind.  107 

CRIMINAL    LAW.      See    also    EMBEZZLEMENT;    INDICTMENT; 
LARCENY ;  FELONY; FORGERY. 

criminal  prosecutions  for  violations  of  warehouse  act, S.  Dak.  738 

violation  of  warehouse  act  a  criminal  offense,.  .  .Tenn.  752,  Wash.  799 

statute  impoiing  penalties  on  warehousemen,  constitutional,.  .  .  .Ore.  686 

unlawful  sale  of  goods  btj  warehouseman,  indictment, Mo.  498 

penalties  for  crimes  against  warehouses, Ind.  197 

larceny  from  warehouse  at  night, Me.  311 

penalty  for  breaking  into  warehouse, Wis.  817 

larceny  and  burglary  from  warehouse, Mo.  495 

penalties  for  burning  property, Wis.  816 

one  who  steals  receipt  canjiot  plead  want  of  authority  in  irarehouse- 

man  to  issue, Minn.  444 

insufficient  allegations  in  an  indictment  of  a  warehouseman,.  .  .  .Ore.  686 

"  warehouse  "  and  "  storehouse  "  synonymous, Mo.  495 

"  granary  warehouse  "  means,  "  warehouse," Mo.  498 

CUSTOM.     See  also   USAGE. 

that  assignor  of  receipt  not  liable  thereon,  provable, III.  178 

knowledge  of,  must  be  shown, III.  165 

considered   in   ascertaining   contract    between   depositor   and   icare- 

houseman, Tenn.  753 

as  to  insurance,  consignor  may  rely  upon, La.  303 

must  be  proven  by  what  has  been  generally  done, Ky.  278 

cannot  change  law, Ga.  108 

evidence  as  to,  not  conclusive  as  to  ordinary  care, Minn.  433 

to  show  practice  of  storing  goods  in  any  warehouse,  will  not  relieve 
warehouseman  who   has   contracted   to   store   cotton   in   fireproof 

warehouse, Tex.  769 

OS  to  shipping  grain  at  certain  time  of  year,  ichen  no  defense  in  ac- 
tion of  conversion, Ore.  682 

what  not  a  good  custom  in  regard  to  transfer  of  receipts, Ala.  20 

of  making  an  allowance  for  tare  in  cotton  liale  ■,  abolished, .  .  .S.  C.  724 

may  be  varied  by  instructions  from  owner, Ky.  279 

admission  of  evidence  as  to  particular  acts,  error Ky.  278 

evidence  as  to  mixing  grain,  when  receivable, la.  224 

by  which  commingling  of  goods  becomes  a  sale, ///.  168 

DAILY, 

statements  to  be  made  to  registrar, Minn.  389 

DAM.^GES.     See  also  EXEMPLARY  DAMAGES. 

recoverai)le  for  violations  of  warehouse  act, 

Del.  84,  Ky.  272,  Minn.  405,  N.  Y.  556,  S.  C.  718,  Wis.  823 


INI.KX.  880 

References  to  laws  arc  printed  in  ronum.     Those  to  derisions  arc  in  ilalia,. 

DAUXGES—Continued.  j, 

for  violation  of  warehoiise  act,  exemplary,  recoverable hi.  213 

warehouseman  liable  for,  in  ciuse  of  ncfilect  or  violation,.' Kan'  2J7 

bailee  may  maintain  action  for, /„    .>i(j 

depositary  liable  for  all  dama^'es  incurred  during  any  \vron^rf„i 

use  of  thing  deposited, "  ( '^^\      -jr, 

consignee  may  recover  full  damages, Mass.  ;M7 

individuals   may  prosecute   for,   aside   from   warehoti  e  act 

Mo.  47S,  Xol).  ."j^S 

warehouse  act  does  not  affect  ri'jht  to  briiij,'  action  for, Okla.  ()7:j 

may  be  recovered  for  being  deprived  of  the  possession  of  proijcrly 

represented  by  ivarehouse  receipts, qIiIq    f,5.j 

to  hold  warehouseman  liable   for  exemplary  damages,  uyiUful  viola- 
tion must  be  shown, /^    214 

may  be  recovered  of  warehousemen,  regardless  of  criminal  jirosecu- 

tion  for  violation  of  warehouse  act, Tenn.  752 

payment  of,  when  sites  for  warehouses  condemned, 8.  Dak.  745 

in  action  for  conversion  against  bailee,  he  may  set  off  amount  of 
claim, A'.  J.  54>S 

DANGEROUS  PROPERTY, 

warehouseman's  duty  in  case  of  storage  of, X.  C.  6O5 

sale  of,  when  and  how  to  be  made, Mass.  337 

DEATH, 

effect  of  death  of  principal, (7a    jqS 

DEBRIS, 

cost  of  removal, f/a    j  14 

DEBT.     See  also  ANTECEDENT  DEBT. 

DEBTS, 

when  stored  property  liable  for  those  of  bailee;  rule  stated, S.C.  726 

DECLARATION.     See  also  PLEADINGS. 

must  be  filed  with  recorder  of  deeds, la.  211.  Ind.   191 

must  be  filed  with  register  of  deeds  before  warehouse  receipts  may 
be  issued, Wi.s.  ,s21 

DEFICIENCY, 

warehouseman  may  sue  for,  after  sale  of  goods  for  storage  and 
other    charges, Wyo.  835 

DEFINITIONS, 

apparent  good  order, 1  rA-.  33 

ai  owner's  risk  as  to  fire, la.  220 

bailment, Ga.  101 

bUl  of  lading.   La.  307,  Me.  313,   Mass.  340,   N.   D.  (-.20,   Wash.  707 

bought  of,  as  used  in  warehouse  receipt, In.  220 

cold  storage, \'.   1'.  585 

diligence, , Fla.  95 

65 


866  i>nDex. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

DEFIXITIOXS— Con^mu«d.  "  pack 

distiller,    Ky.  271 

embezzlement, Utah,  772 

good  order, la.  225,  Me.  314 

inevitable  accident, Miss.  453 

in  good  order, Ida.  125 

negligence, Fla.  95,  R.I.  712 

ordinary  care, 

Ala.  7,  Ga.  104,  Minn.  433,  Xeh.  536,  N.  Me.v.  550,  A".    1'.  565, 

S.  C.  726,  Tenn.  753,  Wis.  827 

ordinary  diligence, Ga.  102 

pledge, W.    Va.  810 

public  elevators, Ky.  259 

public  granaries, Ky.  259 

public  warehouses, 

Colo.  63,  Kan.  239,  Ky.  259,  X.  D.  613,  Okla.  656,  S.  D.  731 

warehousemen, Pa.   689 

warehousemen, Ind.  193,  Mich.  352,  X.  Y.  563,  Tenn.  751 

warehouse  receipt, .\riz.    21,    Wash.  '797 

warehouse  receipt, Cal.     59 

DELIVERY.     See  also  PARTIAL  DELIVERY. 

a  depositary  must  deliver  on  demand, Cal.  34 

failure  to  deliver  on  demand,  effect  of, Ga.  96 

what  constitutes  valid  excuse  for  failure  to  deliver, Xeb.  537 

consignee  may  waive  terms  of  contract  as  to, Ala.  8 

presumption  from  refusal  to  deliver,  without  explanation, Ala.  9 

bailee  protected,  if  he  delivers  in  good  faith  to  bailor, Cal.  47 

dutj'  of  depositor  in  case  of  joint-ownership, Cal.  35 

warehouseman  must  not  deliver  after  service  of  summons  in  garnish- 
ment,   Ga.  Ill 

if  made  on  a  sampler's  ticket  not  valid, ///.  172 

must  be  actual  before  receipt  issued, Ind.  186 

trover  will  not  lie  for  mere  failure  to  deliver, Ala.  13 

of  grain  by  carrier,  penalty, 111.  149 

if  made  upon  a  judgment,  warehouseman  jyrotected, La.  306 

wrongful  when  made  to  broker, Ga.  107 

wrongful,   by  warehouseman  prohibited, Colo.  67 

prohibition  against,  not  operative  when  removed  bj-  process  of 

law, Conn.  75 

notice  when  grain  not  to  be  delivered  into  store, X'eb.  522 

by  placing  cars  containing  grain  at  point  designated  by  consignee,  la.  225 

failure  to  make  promptly  followed  by  loss  by  fire, Minn.  437 

failure  to  deliver  on  demand  does  not  show  negligence, Ma.^s.  346 

should  be  made  on  order  for  "balance  due," Mass.  349 

action  for  failure  to  deliver  on  demand, Minn.  381 

at  irarehouse  for  purpof^e  of  being  weighed,  effect  of, Cal.  48 

bailee  protected  if  he  delivers  to  true  owner, Ala.  10 


INDEX.  8G7 

References  to  law,^  are  printed  in  roman.     Thone  to  dccisiun.s  are  in  t/o/ic*-. 

DELIVERY— Co/i/iH  «<•(/.  ^,J^^.^. 

of  key  of  warehouse  a  delivery  of  ronterUx, S.  V.  ."MMi 

facttt  not  constituting  a  good  delivery  at  warehuu.sc, A'.  1'.  507 

improper  delivery  by  warehouseman   to  defcndaiU  xn  replevin  niit, 

\.y.  570 

facts  not  constituting  a  valid  delivery  to  a  warehouseman, Pa.  090 

bill  of  ladinsi  to  be  cancelled  when  property  delivered N.  Y  IHV) 

warehouse  receipt  to  be  marked  and  cancelled  upon 

La.  286,  Mo    460,  S.   Dak.  7:i7 

loss  by  overpowering  force,  sufficient  excuse  for  non-delivery, La.  302 

refusal  to  deliver  when  receipt  outstanding, Cal.  (jO 

when  warehouse  receipt  or  bill  of  lading  not  returned  indemnity 

may  be  required, Wash.  801 

to  any  partner  is  a  delivery  to  the  firm, Ala.  9 

receipt  holder  must  give  written  consent  to  release  of  goods  stored, 

Wa-sh.  799 

of  grain  not  to  be  made  unless  inspected, Mo.  463,  Okla.  659 

of  grain  by  carriers,  requirements, 111.  127 

of  grain  to  be  made  within  24  hours  after  car  furnished,  proviso, 

Minn.  409 

property  must  be  actualh'  delivered  before  receipt  issued, 

Tenn.  751,  Tex.  763 

must  be  mxide  within  reasonable  time  after  demand, Ka/i.  2.'50 

to  a  compress  deemed  actual  delivery, \la.  2 

warehousemen  must  account  for  failure  to  deliver, Pa.  701 

statutory  requirements  as  to, 111.  134 

attornment  by  warehouseman  where  there  is  delivery  of  property  by 

warehouse  receipt, \fo.  497 

full  quantity  and  grade  to  be  delivered  on  demand Minn,  .'isl 

order  of  delivery  of  grain, .  ^ .\el).  519 

if  made  bj'  mistake  replevin  will  lie, Pa.  692 

to  one  purporting  to  be  true  owner,  bailee  assumes  burden  of  jtroof,  .ila.  9 

by  carrier  by  depositing  in  warehouse, S.  C.  726 

ichen  storage  is  not  a  delivery, ///.  105 

if  bills  of  lading  or  warehouse  receipts  be  drawii  to  ''bearer" 

they  pass  by  delivery, Wash.  800 

to  holder  of  original  warehouse  receipt,  warehouseman  exonerated 

by,   Wiush.  801 

to  holder  of  original  bill  of  lading,  carrier  exonerate  1  by,.  .Wa.<<h.  801 

ichen  warehouseman  not  liable  for  misdelivery,  diligence, Mo.  494 

surrender  of  receipt  for  purpose  of, ///.  181 

without  surrender  of  receipt,  warehouseman  liable, Ind.  208 

of  goods  in  damaged  condition,  effect .V.  Y.  505 

unreasonable  requirements  as  to  identification .V.  1".  5S9 

liability  of  sampler  of  tobacco  terminates  upon, Va.  7s5 

payment  to  sampler  of  toliacco  upon Va.  786 

to  bailor  after  notice  of  owner's  claim,  rule  staled, Tex.  707 

by  warehouse  receipts,  a  symbolic  one, Tex.  770 


868  INDEX. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

DELYVERY— Continued.  page 

by  warehouseman  without  authority,  conversion, N.  Y.  566 

refusal  to  deliver  on  demand  constitutes  conversion, N.C.  609 

■pursuant  to  order  of  one  not  owner,  constitutes  conversion, Ore.  683 

of  property  by  warehouseman  without  notice  of  claims, X.  Y.  595 

ivarehouseman  may  defend  by  showing  delivery  to  agent, S.  C.  726 

by  process  of  law,  sections  of  warehouse  act  do  not  apply, 

X.  Y.  561,  S.  Dak.  748 

under  judicial  process;  ivarehouseman  protected, La.  299 

when  receipt  outstanding,  warehouseman  liable, N.  Y.  594 

of  goods  when  negotial)le  receipt  or  bill  of  lading  outstanding, 

penalty,  S.  Dak.  748 

liability  for  special  and  other  penalties  for  failure  to  deliver, .  .  .  La.  293 

to  one  not  holding  warehouse  receipt,  burden  of  proof, Miss.  452 

grounds  of  refusal  to  deliver  cannot  be  changed,  ivhen, Minn.  435 

where  failure  to  deliver  on  demand  is  shown,  burden  then  on  bailee, 

N.  Y.  570 

on  forged  order,  bailee  liable, A^.  1'.  566 

warehouseman' s  reasons  for  failure  to  deliver  cannot  be  shifted  dur- 
ing trial, Ore.  683 

of  goods  without  the  return  of  the  receipt,  when  law  not  applicable, 

X.*Y.  593 
failure  to  make  on  demand  declared  to  be  larceny,  N.  D.  616, 

S.  Dak.  735 

must  be  made  to  owner  when  charges  paid, Ore.  678 

to  true  owner  always  good  defense  for  bailee, Xeb.  536,  Vt.  775 

in  case  of  lost  warehouse  receipt, Va.  779 

without  return  of  receipt,  bailee  liable, Xeb.  538,  A".  Y.  567 

to  holder  of  receipt  exonerates  warehouseman, Ariz.  24 

in  case  of  non-negotiable  receipts  consent  of  original  depositor 

must  be  obtained, Cal.  43 

to  one  holding  iinindorsed  receipt,  warehouseman  liable, Ala.  18 

to  be  made  upon  surrender  of  warehouse  receipt, 

Ind.  187,  Kan.  243,  Ky.  262,  Minn.  388,  Mo.  467,  Xeb.  514, 

Okla.   663,    S.    Dak.   734,    Tex.   763,   Wash.  799 

entitled  to  return  of  receipt  before  delivery  made, Ga.  119 

not  to  be  made  unless  receipt  returned, Pa.  688 

DEMAXD, 

not  necessary  when  warehouse  closed, S.  Dak.  749 

not  necessary  before  replevin  brought, Del.  85,   Tenn.  755 

necessary  before  detinue  brought, Tenn.  755 

not  necessary  before  assumpsit  brought, R.I.  713 

proper  if  made  on  agent  in  charge  of  warehouse, Minn.  433 

good  if  made  after  grain  removed, Minn.  434 

for  storage  charges  must  be  made  before  sale, Me.  310 

when  unnecessary  before  action  for  conversion,.  .  .  .X.  D.  625,  Pa.  697 

necessary  before  action  brought  for  conversion,.  ...X.  D.  624,  Tenn.  753 


iM)i;x.  8G9 

References  to  laws  are  prinled  in  roman.     Those  to  (kcisions  are  in  ilalicH. 

DEMAND—Conlinucd.  i-acje 

must  be  made  within  reasonable  time  in  case  of  conversion, .  .  .  W.  \  a.  H(jy 
no  obligiition  to  deliver  without  deinautl, C'lil.     34 

DENIAL, 

of  storajje  by  jirain  warehousoniaii,  not  poniiitted, S.  Dak.  7:50 

DEPOSIT.     See  also  BAILMENT. 

kinds  of,  defined  by  statute, Cal.     34 

DEPOSITARY, 

must  obtain  consent  of  depositor  to  use  thing  deposited,.  .  .  .Cal.     35 
must  obey  orders  of  depositor, La.  29.S 

DEPOSITOR, 

what  he  must  indemnify  depositary  for, C"al.     35 

liable  for  all  storage  charges, .Ma.ss.  338 

DEPUTIES, 

appointment  and  qualification  of  deputy  inspectors  of  toljacco,  Mo.  485 
warehousemen  may  appoint, Ma.ss.  335 

DEPUTY  INSPECTORS, 

appointment  and  qualifications  of, Minn.  '.V.\'),  Mo.  472 

oath  and  bond  of, Miiui.  395 

appointment,  salary,  etc.,  of  deputy  inspectors  of  tobacco, 

Md.  320,  Mo.  485 

DESCRIPTION.     See  BRANDS  AND  MARKS. 

of  property  stored  to  be  made  by  warehousemen, Neb.  505 

in  warehouse  receipt  must  be  definite, Ind.  105 

DETENTION, 

action  of  trover  will  lie  against  bailee  where  there  is  a  wrongful  de- 
tention,   • 1  '•  ""•'> 

DETINUE, 

demand  necessary  before  action  brought, Tcnn.  755 

no  previous  demand  necessary, I),  of  C.  90 

gist  of  the  action, />•  "/  ('■  ^^ 

bailee  may  maintain, '  ''■  "^•'' 

loarehouseman  cannot  plead  his  oicn  wrong Cnl.  47 

maintainable  where  there  was  originally  a  bailment, D.  of  (\  S9 

pleading,  confession  and  avoidance, D.  of  C.  90 

DEFICIENCY, 

depositor  liable  for  any,  after  sale  for  storage  charges M;u*s.  33S 

DILIGENCE.     See  also  ORDINARY  CARE. 

defined, ^f"-     ^^ 

reasonable  diligence  defined, ^*''-     ^* 


870  INDEX. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

DILIGENCE— Con/inwed.  page 

where  warehouseman  delivers  to  wrong  person, Mo.  494 

delivery  of  grain  to  be  made  as  rapidly  as  diligence,  etc.,  will 

justify,    Minn.  409 

bailee  must  show,  after  proof  of  loss, Ga.  101 

must  be  shown  even  where  loss  result  of  overpowering  force, La.  302 

depositary  need,  only  use  due  diligence, La.  301 

warehouseman  bound  only  to  ordinary  diligence, Ga.     96 

DIRECTORS, 

duties  and  liabilities  of, N.  Y.  600 

chargeable  with  knowledge  as  to  manner  of  issuing  warehouse  receipts, 

N.  Y.  597 

fraud  on  part  of  one  director  not  imputable  to  bank, Alass.  350 

personally  liable  where  there  has  been  a  failure  to  file  annual  reports, 

N.  Y.  599 

DIRECTIONS, 

of  owner  of  grain  must  be  obeyed, Minn.  398 

DISAVOWAL, 

an  unauthorized  sale  by  bailee  must  be  promptly  disavowed,.  .  .  .Ky.  275 

DISCONTINUANCE, 

of  one  as  warehouseman  to  be  published, Mass.  334 

DISCOUNT, 

of  paper  based  on  warehouse  receipts  not  considered  a  loan,  when, 

Mo.  487 

DISCOVERY, 

owner  may  have,   against  one  selling  or  attempting  to  sell  his 
property,     Ohio,  630 

DISCRETION, 

warehouseman  to  use  his  own,  in  case  of  fire, N.  C.  609 

DISCRIMINATION, 

l>etween  persons  by  public  warehovisemen  prohibited, 

111.  131,  Ind.  185,  Minn.  386,  Mo.  462,  Neb.  511,  Okla.  658 

between  purchasers  of  tobacco  forbidden, Ky.  270 

and  excessive  charges  by  railroads  prohibited, S.  C.  722 

by  railroads,  penalty, S.  C.  723 

not  to  be  made  by  carrier  shipping  grain, Mo.  489 

in  inspection  of  grain,  complaints  as  to, Minn.  412 

DISPUTES, 

concerning  tobacco  inspection  to  be  referred  to  arbitration  com- 
mittee,   Md.  324 

DISTILLER, 

who  is  within  meaning  of  law, Ky.  271 

may  issue  warehouse  receipts, Ky.  271 


INDKX.  871 

References  to  laiof;  are  printed  in  nunim.      Tliose  to  decisions  are  in  italics. 

DISTINGUISIIIXC,  MARK'S.     See  HI{A.\1)S  AND  MAitKS.  i-a<jk 

DOUBLE  POLICIES, 

iL'hat  are  and  effect  of, Md.  329 

DRAFT, 

if  receipts  attaclied  to,  tlicii  mai/  be  surrendered  on  ucee ptnnrc  of  draft, 

La.  :i[;<> 

DRY  CLEAN, 

when  warehouseman  permitted  to, Kuii.  2  lo 

DRYING, 

warehouseman  may  dry  and  clean  grain 111.   Ill 

DUE  DILIGENCE.     See  DILIGENCE  ;  OKI )L\AKV  CARE. 

DULUTH, 

act  providing  for  purchase  of  warehouse  site  at,  held  unconstitu- 
tional,   Minn.  403 

warehouses  in,  where  grain  mixed,  declared  public  warehouses, 

Minn.  3Sl 

DUPLICATE, 

railroad  liable  if  it  issue  duplicate  original  bills  of  lading, Kan.  254 

DUTIES, 

in  the  running  of  country'  warehouse,  defined, Minn.  40.S 

additional  duties  of  board  of  transportation  defined, Xeb.  525 

DUTY, 

no  duty  or  tax  to  be  imposed  upon  auction  sales  of  tobacco,  when, 

Ohio,  G36 
of  warehouseman  defined, Oa.  104 

EGGS, 

best  evidence  to  prove  condition  of, /"'/■  205 

ELEVATOR  CHARGES, 

maximum  charge  fixed  by  statute, X.  "S  .  5.)() 

ELEVATOR  RECEIPTS.     See  WAREHOUSE  RECEIPTS. 

penalty  if  holder  fail  to  comply  witli  terms  of, Md.  31W 

valid  tender  may  he  made  wiih, Mich.  373 

ELEVATORS.     See  PUBLIC  ELEVATORS;  WAREHOUSES. 

EMBEZZLEMENT.     See  also  CRIMINAL  LAW. 

defined,  ^'^f'^-  "^2 

is  a  species  of  larceny, ^  "'•     ^^^ 

from  warehouse  deemed  larceny, ^'"''•-  •'^^'^ 

by  bailee,  larceny, I"^-  ^y.  210 

conversion  by  bailee  is  not, D.  of  C.    88 


872  INDEX. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

EMB  EZZLEMEXT— Con/mwcd.  page 

fraudulent  conversion  by  warehouseman  declared  to  be, 

Colo.  68,  D.  of  C.     87 

by  warehouseman  and  others,  penalt}-, 111.  158 

by  bailee,  penalty,  Fla.  93,  Idaho,  124,  Mich.  370,  I'tah,  772,  Wis.  818 
irarehousc7nen  may  maintain  one  action  to  recover  goods  of   several 
depomtors,  Cal.     58 

EMPLOYEES, 

lessor  of  safe  deposit  boxes  bound  to  vse  care  in  selection  of, Cal.  52 

care  in  selecting,  liabiliti/, Ga.  103 

indictment  for  larceny, Ga.  123 

of  icarehouseman,  not  in  possession  as  bailee, Ga.  123 

injuries  to,  when  warehouseman  not  liable, ///.  181 

ENVELOPES, 

notice  that  warehouse  is  licensed  must  appear  on  warehouseman's 
envelopes, Va.  791 

EQUITY, 

has  not  jurisdiction  in  case  of  conversion, Md.  328,   IT'.   Va.  809 

has  no  jurisdiction  where  the  disptde  is  simply  one  of  title, 

.V.    Y.    571,    A'.    J.  548 

has  jurisdiction  ichere  commingled  goods  are  destroyed, 

///.  169.  Minn.  434 

court  has  jurisdiction  where  receipt  lost, Ga.  119 

courts  of,  will  not  compel  stockyard  compajiy  to  do  business  with 

railroad, X.J.  549 

powers  of,  to  prevent  fraudulent  disposition  of  property  in  hands 

of  factors,  etc., N.  Y.  559 

whe7i  there  is  also  suit  at  laiv,  res  judicata, Ky.  272 

EQUITABLE  LIEN, 

arises  in  case  of  substitution  of  other  property, ///.   170 

when  it  does  not  exist, Ga.  114 

EQUITIES, 

pledgee  who  takes  receipt  without  indorsement  takes  subject  to,,  .hid.  208 
ESTOPPEL, 

by  warehouse  receipts, Minn.  440,  .V.  Y.  591 

warehousemen  not  estopped  by  .statements  on  receipts  as  to  contents 

of  packages, Wis.  829 

warehouseman  estopped  by  his  receipt  to  deny  that  the  goods  were 

received, Teim.  758 

warehouseman  not  estopped  to  .'hoir  goods  are  not  actually  in  stare, 

^hen, N.Y.  596 

warehouseman  e.'itopped  to  deny  that  goods  named  in  receipt  are 

•''tored, ///    170 

warehouseman  estopped  where  agent  issued  false  warehouse  receipt, 

S.Dak.  749 


INDKX.  873 

References  lo  laws  are  prinled  in  roman.     Those  to  derisioiin  arc  in  italics. 

ESTOPPEL—Continued.  paok 

by  warehouse  receipts  when  no  notice  on  as  to  unimid  intrcfinsc  }iricr, 

Ohio,  C.o'J 

when  warehouseman  not  estopped  hy  informal   nrrlj-f Minn.    \\'.\ 

by  indorsement  of  warehouse  receipt, /'u.  70 1 

when  owner  estopped  to  deny  warehouseman's  authority  to  issue 

receipt,  A'//.  279 

by  statements  iii  hill  of  lading,  when, Conn.     Hi 

carrier  not  estopped  by  hill  of  lading  to  deny  that  goods  u-rrc  reccirrd, 

Arh.     3i 

warehouseman  estopped  to  change  his  defense  at  the  trial, Ore.  083 

assignee  of  warehouseman  not  estopped  to  deny  sale  by  assignor.  A'v.  2S4 

EVAPORATION, 

allowance  to  be  made  for,  may  he  definitely  fixed  by  contract,.  .  .Ohio,  G50 

EVIDENCE.     See  also  PAROL  EVIDENCE. 

warehouse  receipts  are  evidence  as  to  ownership  of  property  refrre- 

sented, Ohio,  054 

an  offer  to  compromise  not  admissible, Ma.ss.  347 

receivable  to  show  special  value  of  lost  properly, ,V.  Y.  595 

correspondence  receivable  to  show  contract  of  storage,  when,.  .  ..\finn.  435 

warehouseman's  books  best,  as  to  weight  of  stored  goods, Oa.  112 

of  jrrior  and  independent  actions  by  warehouseman  not  receivable, 

X.  Y.  599 
not  receivable  to  excuse  non-delivery  on  a  different  ground  than  that 

given  in  the  plea, Ore.  683 

receivable  to  show  what  was  meant  by  "cold  storage," .V   Y.  585 

receivable  to  explain  "in  good  order," Idaho,  125 

best  to  prove  condition  of  eggs, Ind.  205 

what  warehouseman  must  show  where  failure  to  deliver  on  demarul  is 

proven, A  .  1  .  570 

wei2;hmaster's  certificates  to  be  prima  facie  evidence Minn.  401 

as  to  dangzrous  property  near  warehouse,  when  excluded, Uo.  495 

of  sale  of  .stored  goods, Oa.  106 

affidavit  and  notice  of  sale  for  stora,G;e  charfies  receivable  in,  Ma.«a.  337 

when  opinion  evidence  receivable  as  to  loss  by  fire, \la.     11 

bills  of  lading  and  warehouse  receipts  conclusi\e  evidence  of  their 

contents,   Md.  315 

when  admissible  to  vary  bill  of  'ailing 1/</.  331 

either  of  the  duplicate  bills  of  lading  receivable, Kan.  2J9 

warehouse  receipts  presumptive  evidence  of  owncrsliip la.  215 

warehouse  receipt  recei\'able  in, Ky.  2.).> 

when  receivable  lo  shoiv  purpose  of  indnr.'<cment  of  receipt, <ia.   117 

when  statements  of  warehousemen  receivable  as  part  of  res  gesta-,  Cal.     51 

EXAMINATION, 

owners   and   persons   interested   may   examine   stored   pn>iv>rty, 

Kan.  247,  Mich.  300 


874  INDEX. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  iialics. 

EX.\M1  X  ATIOX— Con/inued.  page 

all  property  in  public  warehouses  subject  to,  by  inspectors,  ISIinn.  393 

of  railroads  and  warehouses  by  commissioners, 111.   152 

of  books  by  railroad  and  warehouse  commission, 111.  153 

by  railroad  and  warehouse  commissioners, 111.  152 

EXCESSIVE  CHARGES, 

by  railroads  prohibited, S.  C.  722 

EXCHANGE, 

suspension  from,  no  defense  for  sureties, Ky.  273 

"EXCHANGE  TICKETS," 

and  "inspector's  tickets"  both  outstanding,  carrier  liable, Minn.  443 

EXECUTION, 

when  cannot  be  issued  against  stored  property, III.  176 

property  held  by  bailee  not  subject  to,  in  an  action  against  him.  Neb.  537 
against  property  in  factor's  hands, Tex.  766 

EXEMPTIONS, 

what  valid  in  bill  of  lading, Conn.  82,  Md.  331 

in  bill  of  lading  against  unavoidable  accident,  effect, N.  Mex.  550 

in  bills  of  lading  cannot  be  against  negligence, Mass.  350 

burden  on  carrier  to  show  that  manner  of  loss  was  within,.  .  .  .Mass.  349 

against  loss  by  fire,  notice  valid, Me.  313 

scales  under  state  weighmaster  exempt  from  city  weighers,  Minn.  402 

EXECUTORY  CONTRACTS.     See  CONTRACTS. 

EXEMPLARY  DAMAGES.     See  also  DAMAGES. 

recoverable  for  violation  of  warehouse  act, Wis.  823 

EXPERIENCE, 

want  of,  on  part  of  warehouseman, A^.  C.  611 

EXPERTS, 

statement  of,  in  case  of  defaulted  pledge, La.  289 

EXPLOSIVES, 

sale  of,  after  dark,  prohibited, Mont.  502 

EXPLOSIVE  FLUIDS, 

penalties  for  keeping  when  not  inspected, R.I.  708 

EXPORTATION, 

laws  pertaining  to  inspection  of  kerosene  do  not  apply  when  ex- 
ported,  RI-  709 

EXPRESS  COMPANIES.     See  also  CARRIERS. 

may  refuse  to  deliver  to  consignee  if  not  true  owner, J\  is.  825 

EXPRESSMEN.     See  also  CARRIERS. 

cannot  escape  liability  by  claiming  to  be  "forwarders  only,"  D.  of  C.     91 


INDEX.  875 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italicjt. 

EXTRAORDINARY  DILIGENCE,  ,.^,jk 

defined  bj'  statute, (j.^    j(j.> 

FACTORS, 

may  pledge  property  entrusted  leith  them, 

(la.  ion,  X.  Y.  fiSO,  f)').'},  Wis.  S2S 

unauthorized  pledge  of  rcceijits  hy;  owner  protected, Im.  289 

how  far  considered  owner  of  jroods, Me.  30S,  X.  V.  Tj^S,  ( )liio,  62.S 

property  intrusted  to  remain  principal's /^o  301 

must  act  under  instructions, (;„  i  qj 

no  presumption  of  ownership  from  possession  by, La.  29.S 

one  cannot  deal  with  and  ignore  owner's  rights, /,«.  300 

cannot  lawfully  pledge  jyrincipal's  property  for  his  own  dcl>ts, La.  300 

may  pledge  goods  to  extent  of  their  interest, La.  301,  301.  Tcnn.  754 

may  .se/^  to  recover  advances, 6'a.  108 

if  he  makes  pled<i;e  for  antecedent  debt,  owner  protected,.  .  .X.  V.  'j.W 

principal  liable  for  commissiojis  and  all  disbursements  of, (ia.  1 10 

given  liens  for  advances, Wis.  815 

possession  necessary  to  lien, (ia.  110 

how  liens  of,  enforced, Ui.s.  81  o 

who  is,  within  meaning  of  c.  54,  sec.  2,  Gen.  Stats., .l/a.s.s.  341 

liable  if  they  fail  to  insure  contrary  to  knoini  cu.<itom, La.  303 

not  liable  if  they  obey  principal's  instructions, La.  301 

relations  of,  with  principal, La.  299 

when  they  may  refuse  to  comply  with  an  order  to  sell Tenn.  754 

fraudulent  appropriation  of  merchandise  by,  penalty Xclj.  531 

cannot  charge  up  personal  debt  against  their  jmncipal  trustee,..  .La.  301 

receipts  of,  not  tvarehouse  receipts, ///  1 75 

nature  of  their  contracts  ivith  jjrincipal, La.  300 

execution  against  property  in  the  hands  of, Tex.  766 

powers  of  equity  courts  to  prevent  fraudulent  tlisposition  of  prop- 
erty intrusted  to, N .  V.  559 

FALSE  RECEIPTS.     See  WAREHOUSE  RECEIPTS. 

FALSE  WEIGHTS, 

penalty  for  using, Ky.  207 

FEES, 

for  license  of  public  warehousemen, X.  D.  614 

of  samplers  of  tobacco, \'a.  785 

when  tobacco  samplers'  fees  to  be  paid, Va.  7s7 

when  samplers  of  tobacco  only  to  receive  half  fees Va.  7S6 

division  of,  by  samplers  of  tobacco,  prohibited, Va.  7s7 

of  tobacco  inspection,  by  whom  paid, Mo.  481 

for  warehousing  and  inspection  of  tobacco  limited  by  statute, .  .  Mo.  486 

paid  to  samplers  for  sale  of  loo.se  tobacco, Va.  787 

of  a  sampler  actini!;  for  another  warehouse,  how  paid, Va.  787 

penalty  against  the  taking  of  illegal  fees  by  tobacco  inspectors. 

Ohio,  639 


876  INDEX. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

FEES — Continued.  page 

when  tobacco  rejected, Ky.  269 

of  justice  of  the  peace  and  constable  where  unclaimed  or  perishable 

property  sold, Minn.  378 

for  inspection  of  kerosene, R.I.  708 

of  appraisers  where  goods  sold  for  charges, Wyo.  835 

of  officers  when  unclaimed  property  sold, Wis.  813 

for  weighing  of  grain, Xeb.  531 

for  weighing  grain,  how  fixed, Mo.  479 

of  state  weighmaster,  how  fixed, Minn.  394 

FELONY.     See  also  CRIMINAL  LAW;  EMBEZZLEMENT. 

violation  of  warehouse  act,  constitutes, Cal.     44 

violation  of  parts  of  warehouse  act  deemed, Minn.  383 

issuance  of  fraudulent  receipts  constitutes, Ind.  190 

bribery  of  those  in  grain  inspection  service,  penalty, Kan.  237 

entering  warehouse  to  commit,  penalty, Ind.  198 

FERGUS  FALLS, 

made  a  terminal  point, Minn.  401 

FICTITIOUS  NAME, 

bill  of  lading  so  issued  not  good  in  hands  of  one  taking  innocently,  Ala.     19 

FINDER, 

may  place  things  found  in  storage, Cal.     39 

FINES, 

for  using  weights  and  measures  not  proved, Minn.  422 

FIRE.     See  LOSS  BY  FIRE. 

FIRE  ESCAPES, 

when  warehouses  must  be  provided  with, Mich.  365 

FIREPROOF, 

warehouse  need  not  be, Tenn .  753 

contents  of  such  warehouses  need  not  be  insured,  when,.  .  .  .]\Iinn.  430 

advertisements  that  ivarehouse  fireproof,  liability, Tex    769 

must  be  term  of  contract  in  order  to  constitute  warranty, Ala.     15 

FLOOD.     See  LOSS  BY  FLOOD. 

FLOUR, 

to  be  delivered  for  wheat  deposited,  a  sale, Ind.  199 

FORFEITURE, 

of  spirits  mixed  mth  others  fraudulently    withdrawn    from    bonded 
warehotise, Ma.^s.  342 

FORGERY.     See  also  WAREHOUSE  RECEIPTS. 

of  tobacco  inspectors'  receipts,  penalty, Ohio,  642 

of  warehouseman's  signature,  penalty, Mass.  335 


INDEX.  877 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italic*. 


I'AGE 


FORGERY— C'on/miied. 

of  signature  of  indorser  of  warehouse  receipt, Mass.  33') 

delivery  of  goods  on  forged  order,  bailee  liahle, .V.  }'.  5G6 

of  warehouse  receipts,  penalty, Ma.ss.  33.'),  \'a.  7.s(),  \N'asli.  S03 

of  warehouse  receipt,  iiarehoiiseman  jrrotccted, Cat.  (il 

of  warehouse  receipt,  what  evidence  warehouseman  may  introduce,  C'al.  (il 

FORWARDERS, 

warehoase  act  made  applicaljle  to, Mo.    io9 

FRAUD, 

on  part  of  holder  of  warehouse  receipt, Md.  :\\'j 

of  persons  throusrh  possession  of  warehouse  receipts,  penalty,  Nel».  534 

in  pledg"  of  bill  of  lading,  owner  protected, • Masji.  350 

of  one  holdins:  ad\ances  against  property  represented  by  ware- 
house receipts,   penalty, Md.  319 

on  part  of  factors  or  other  agents  intrusted  with  merchandise, 

penalty, Neh.  531 

on  part  of  consignee,  penalty, Xoh.  r)32 

issuance  of  duplicate  receipts  constitutes  actual  fraud, A'y.  285 

in  issuance  of  receipt,  when  bailor  protected, Ga.  116 

if  goods  be  taken  from  warehouseman  by,  he  m:iy  maintain  re- 
plevin,    Mich.  359 

penalty  for  fraudulent  disposition   of  goods  by  warehousemen, 

Mich.  369 
implied  by  possession  of  a  receipt  by  warehouseman,  in  another's 

name, Ky.  283 

exemptions  in  bill  of  lading  not  valid  against Colo.  73 

warehouse  receipt  procured  by,    innocent  purchaser  protected,  Ala.  17 

tvhere  goods  fraudulently  removed  by  pledgor,  pledgee  protected,  Ala.  14 

"FREEZER," 

absence  of  agreement  that  goods  to  be  placed  in,  effect, Conn.     79 

FREIGHT, 

notice  of  arrival  must  be  given  within  three  daj-s, Colo.     63 

warehouseman  may  recover  in  full  for  all  advances  for, .V.  1'.  574 

lien  on,  for  storage,  when, Ohio,  632 

register  of,  to  be  kept Ohio,  630 

consignor  ultimately  liable  for.    •.Ma.'^s.  349 

sale  of  when  unclaimed,  when  and  how  made Colo.  64,  S.  C.  723 

when  uncalled  for  may  be  stored, Colo.     63 

sale  of  for  charges,  when  and  how  may  I)e  made, Ohio,  631 

disposition  of  proceeds  of  sale  of, Ohio,  631 

suit  to  subject  freight  to  pajment  of  co.sts, Ohio,  632 

reclamation  of  property  after  sale  for  charges, Ohio,  633 

when  sold  for  charges,  copy  of  notice,  sale  bill,  etc.,  to  be  kept, 

Ohio.  633 
when  warehouseman  liable  for, .V.  1  .  566 


878  INDEX. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

FROST  PROOF,  page 

what  is  not  a  u'arranty  as  to  a  warehouse  being, N.  Y.  587 

"FULL  PAID,'' 

as  applied  to  stock,  construed, N.  Y.  600 

GAMBLING, 

receipts  transferred  under  gambling  contracts  void, la.  223 

warehouse  receipts  not  gambling  contracts, Ala.     16 

gaTvie, 

provision  regarding  the  holding  of  during  the  close  season, .  .  .N.  Y.  563 

GARNISHMENT, 

warehousemen  liable  if  he  delivers  after  service  of  summons  of,.  .Ga.  Ill 

against  warehouseman  holding  goods  of  debtor, Pa.  697 

entitled  to  bond  in  case  of,  when, Pa.  697 

GAUGER'S  RECEIPTS, 

warehouse  act  extends  to, Ind.   196 

"GOOD  ORDER," 

used  in  bill  of  lading,  construed, Me.  314 

GOOD  FAITH, 

required  of  warehousemen, Ind.   189 

GOVERNMENT  BONDED  WAREHOUSES.     See  BONDED  WARE- 
HOUSES. 

GOVERNMENT  STOREKEEPER, 

appointment  of,  does  not  lessen  liability  of  warehouseman, Ky.  Ill 

GOVERNMENT  TAX, 

if  warehouse  receipt  states  it  has  been  paid  innocent  holder  protected, 

N.  Y.  572 

GOVERNOR, 

to  appoint  samplers  of  tobacco, Va.  780 

to  appoint  inspectors  of  tobacco, Md.  320 

to  appoint  deputy  samplers  of  tobacco, Va.  781 

to  appoint  chief  grain  inspector, Okla.  656 

to  appoint  chief  inspector  of  grain, Neb.  515 

to  appoint  board  of  appeals  for  the  inspection  of  grain, Minn.  425 

may  license  public  warehousemen, Mass.  332 

annual  report  to,  by  railroad  and  warehouse  commission, 111.  152 

GRADES, 

of  grain  to  be  established  by  railroad  commissioners, S.  Dak.  735 

of  grain  to  be  established  by  board  of  railroad  and  warehouse 
commissioners, Mo.  475 


INDEX.  879 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italias. 

GRADES — Continued.  p^ok 

schedule  of,  to  be  kept  posted  by  warehousemen, S.  Dak.  TM 

different  grades  of  commodities  not  to  he  mixed,  Okla.  (J/iO,  ( )rc'.  (577 

of  grain  to  be  estabUshed  by  board  of  transportation N'oli.  52S 

to  be  established  by  chief  inspector  of  grain, Kan.  "J.'i  I 

of  grain  to  be  established  by  commissioners, III.  1 17 

GRADING, 

grain  to  be  graded,  when, lad.   i sFy 

GRAIN.      See  also  INSPECTION   OF  GRAIN;  SAMPLE;  SCALES; 
WEIGHING  OF  GRAIN, 
railroad  and    warehouse   commission   to  exercise  general  super- 
vision over  grain  interests, Miini.  3!)0 

duty  of  warehousemen  concerning, Ky.  2()0 

warehouse  act  extends  to  grain  stored  in  elevators, Pa.  (i'.tO 

posting  of  grahi  in  store, Neb.  oil 

heating  of,  warehouseman's  duty  in  case  of, Nel).  519 

when  out  of  condition,   warehouseman's  duty, ....111.    I.V.),   Mo.  -168 

when  damaged  may  be  sold,  manner  of, Kan.  231 

may  be  run  through  machinerj',  when, Mo.   lO.'J 

when  replevin  lies  in  case  of  grain  in  bulk, ///.  171 

when  lawful  to  so  keep  grain  in  bulk, Kan.  229 

what  warehouse  receipt  represents  where  grain  commingled,  S.  C.  71H 

all  grain  to  be  weighed  on  receipt, Nob.  519 

requirement  as  to  weighing, 111.   1 2() 

fees  for  weighing   of, 111.   15(J 

rules  for  the  weighing  of, III.   157 

weighing  of,  under  supervision  of  state  weigh nia.stcr, Minn.  393 

when  stored,  not  subject  to  the  liabilities  of  the  warehouseman,  \'a.  779 

warehousemen's  duty  as  to  preservation  of, Okla.  6G4 

grades  of,  to  be  established,  how, 

Ind.  185,  Kan.  234,  Mo.  475,  Neb.  528,  S.  Dak.  735 

different  grades  must  not  be  mixed 

Ky.  266,  Minn.  383,  390,  Mo.  463,  Neb.  520,  Okhi.  659 

"Minnesota  grades"  to  be   established, Minn.  398 

not  to  be  tampered  with  while  stored N'fb.  520 

inspection  of,  a  proper  exercise  of  the  police  power, ///•   164 

when  warehouseman  may  mix, I''-  l-'' 

mingling  of  equal  grades  allowed, "  i-^-  ^- ' 

public  warehousemen  obliged  to  receive,  when  offered Okla.  6.58 

warehousemen  not  obliged  to  recei^-e  when  they  have  not  room, 

Neb.  511,  Okla.  6.59 

all  grain  must  be  inspected HI.   142.  Okla.  6.5S 

may  be  inspected  while  in  railroad  cars  same  jus  in  warehouses, 

Okla.  673 

to  be  in.spected  prior  to  l)eing  mixed Ok\!\.  660 

samples  of,  to  be  furnished  by  chief  inspector, Minn.  398 


880  IKDEX. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

GRAIN — Continued.  page 

maximum  charges  for  storage  of,  fixed  by  law, 

111.   138,   Minn.  390,  Neb.  518 

maximum  charge  for  elevating  fixed  by  law, N.  Y.  556 

statute  prescribing  charges  for  storing  and  handling, X.  D.  616 

the  handling,  weighing  and  storage  of,  regulated, X.  D.  613 

kind,  grade  and  quality  to  appear  on  warehouse  receipts, ....  Va.  779 

to  be  delivered  upon  return  of  warehouse  receipt, S.  Dak.  734 

yhat  receipt  to  represent  where  grain  mixed, Mass.  334 

sale  of  when  out  of  condition,  how  made, Xeb.  519 

form  of  receipt  for, Ky .  260 

must  be  stored  in  separate  bin  when  owner  recjuests, Okla.  658 

preservation  of,  what  may  be  done, Okla.  659 

warehouseman  storing  his  own,  prohibited, HI.  164 

police  protection  of,  to  be  furnished  by  railroads,  when, ....  Minn.  404 

not  to  be  stored  against  owner's  wish, Minn.  397 

posting    of, 111.   134 

requirement  as  to  delivery, lU.   127 

may  be  sold  by  sample, Kan.   238,   Minn.  400 

tampering  with,  prohibited, lU.  141 

carriers  obliged  to  receive  in  bulk, Mo.  488 

removal    of,    when    warehouse    receipt    outstanding    prohibited, 

penalty, Ind.  193 

no  discrimination  to  be  made  by  carrier, Mo.  489 

when  to  be   kept   separate, Ind.  185,  Kan.  229 

consignments  of  deemed  temporary,  when, Mo.  489 

designation  of  grade  of  grain  on  an  informal  receipt,  not  binding 

on  irareliouseman, Minn.  443 

warehouseman  may  store  his  own, 111.  131 

misdescription  of,  in  warehouse  receipt,  of  no  effect  between  the  par- 
ties,   Minn.  445 

in  cars  to  be  protected  by  warehousemen,  when, Minn.  405 

shipper  to  affix  cards  to  cars  containing, Minn.  406 

coloring  of,  prohibited,  penalty, Minn.  420 

drv'ing,  cleaning  and  moving  of  stored  graui, Xeb.  520 

GRAIX  ELEVATORS, 

tax  on, Tex.  765 

GRAIX  IXSPECTIOX.     See  IXSPECTIOX  OF  GRAIN. 

GRAIN  INSPECTORS, 

no  provision  for  appointment  of  for  class  B, III.  142 

GROSS  XEGLECT.     See  also  XEGLIGEXCE. 

defined  by  statute, Ga.   102 

GROSS   XEGLIGEXCE.     See  also   XEGLIGEXCE. 

facts  constituting, N.  D.  626 

when  only  liable  for, ..,...,,., Ala.     11 


INDKX.  881 

References  to  laws  are  lyrinted  in  roman.     Tlinxc  lu  f/«iKion«  arc  in  italics. 

HEATING,  ia(;k 

when  warehousemen  lial)lo  for  loss  hy, Minn.  '.VM) 

duty  of  warehouseman  in  case  of, 111.   i;{!> 

HOGSHEADS, 

of  tobacco  to  be  vvei!:;lied  anil  bramled  before  inspection, Mo.    j.S2 

when  fraudulently  packed,  how  to  be  marked, Mo,    LSI 

tobacco  inspectors'  fee  for  each Mo.    IS  I 

containinjj;  tobacco  to  be  lunnbered, Md.  .'VJl 

to  be  restored  to  good  shipping;  order  by  tobacco  inspectors, .  .  .  Mo.  4H  t 

HOTEL  KEEPERS, 

when  and  how  unclaimed  and  pcrishaljlc  jiropcrty  may  be  sold  by, 

.\.  i).  (120 

HUSBAND, 

delivery  to  husband  of  bailee  iinthont  the  return  of  the  receipt,  baiUr 
liable, N.Y.  r>ft7 

HYPOTHECATION, 

of  goods  by  warehousemen  only  to  extent  of  advances, Tenn.  752 

of  tobacco  forbidden,  exemption, Ky .  268 

warehouse  receipts  must  be  paragraphed  for, Im.  305 

of  property  entrusted  to  warehousemen  or  carriers,  prohibited, 

Ohio,  630 

IGNORANCE, 

of  warehouseman,  liability  in  case  of, A  .  C.  Til  1 

INCOMPETENCY, 

of  grain  inspector,  board  of  appeals  may  report  same Minn.  127 

IDENTICAL  GOODS, 

must  be  returned  by  bailee,  when, I),  of  C.     88 

IDENTICAL  ARTICLE, 

when  to  be  returned  in  one  form  or  another,  transaction  a  liailmcnt,  III.  100 

IDENTIFICATION, 

unreasonable  requirements  as  to, •  *  •  '  ■  •'''^•' 

IMPORTER, 

liable  for  whole  amount  of  duties, -^  ■  ^  •  •"  - 

IMPUTABLE  NEGLIGENCE.     See  also  NEGLIGENCE. 

there  must  be  the  relation  of  principal  and  agent, Ga.   102 

"IN  APPARENT  GOOD  ORDER," 

in  bill  of  lading  refers  only  to  crternal  cmulition, ^rk.     M 

IMPOSTER, 

one  assuming  to  act  iis  grain  inspectt)r,  penalty, <>Kla.  <)<).» 

INCORPORATION, 

of  warehouse   companies, •*'"■''•  •"'*' 

56 


882  INDEX. 

References  to  laws  are  printed  in  roinan.     Those  to  decisions  are  in  italics. 

INCORRECT  SCALES,  page 

use  of,  penalty, 111.  143 

INDEMNITY, 

warehouseman  entitled  to,  where  receipt  not  surrendered,.  .  .Ariz.     24 
may  be  required  by  a  warehouseman  or  carrier  who  deli\ers  goods 

without  the  return  of  receipt  or  bill  of  lading, Wash.  SOI 

cannot  be  demanded  of  one  who  loses  a  warehouse  receipt, Tex.  770 

INDICTMENT.     See  also  CRIMINAL  LAW. 

under  warehouse  act,  what  it  must  contain, Ky.  257 

insufficient  allegations  in, Ore.  686 

for  theft  from  "granary  ivarehoiise"  equivalent  to  "warehouse,"  Mo.  498 

for  burglary  from  "storehouse"  equivalent  to  "ivarehouse," Mo.  495 

of  warehouseman  for  unlawful  sale,  requisites, Mo.  498 

INDIVIDUALS, 

to  have  same  rights  in  construction  and  maintenance  of  warehouses 

as  corporations, N.  D.  619 

may  prosecute  for  damages  aside  from  warehouse  act.  111.  155,  Neb.  528 

INDORSER, 

penalty  for  forgery  of  indorser's  name  on  warehouse  receipt,  Mass.  335 

INDORSEMENT.     See  also  WAREHOUSE  RECEIPT. 

what  an  indorser  of  a  warehouse  receipt  warrants, Mich.  354 

pledgee  taking  without,  not  protected, Ind.  208 

when  evidence  received  as  to  purpose  of, Ga    117 

delivery  upon  unindorsed  receipt,  ivarehouseman  liable, Ala.     18 

of  bill  of  lading,  effect, Mich.  374 

INEVITABLE  ACCIDENT, 

held  to  be  synonymous  with  "act  of  God," Miss.  453 

INFLAMMABLE  FLUIDS, 

penalty  for  keeping,  when  not  inspected, R.  I.  708 

INFLUENCE, 

attempting  to  influence  grain  inspectors,  penalty, 111.  143 

"IN  GOOD  ORDER," 

construed, Ida.  125 

in  bill  of  lading  refers  only  to  external  condition, la.  225 

INJURIES.     See  also  TORT. 

warehousemen  not  liable  for  those  done  to  goods  prior  to  receipt 

by    him, Mich.  353 

liable  for,  althougli  goods  afterwards  destroyed  without  warehouseman's 

fault, N.  Y.  580 

plaintiff  mu.^t  show  injury  occurred  subsequent  to  receipt  by  bailee.  La.  302 

an  injury  to  property  bailed  falls  on  bailor,  when, Ind.  199 

when  warehouseman  not  liable  for  injuries  to  employees, .III.  181 


INDEX.  888 

References  to  laws  arc  printed  in  rotiuin.     Those,  to  itrrision.'*  arc  in  ilalim. 

mjVRlES.— Continued.  v\(.K 

liabilit]i  of  warehousevnen  for  injuries  received  hij  ])ersonJ<  cowing  in 

ivarchousc,  Tix.  77 1 

to  visitor  to  warehouse,  negligence Cnl.     (VJ 

improper  instruction  to  jury  in  rose  nf ///.   1  si 

INSOLVENCY, 

assignrtient  of  receipt  on  daij  of,  valid Cnl.     (iO 

application  of  mixed  grain,  whcro  hailco  insolvent, N.  1).  010 

INQUIRIES, 

made  by  holder  of  warehouse  receipt  as  to  proprieli/  nf  its  i^muancr, 
effect, V.  >'•  "VJ? 

INSPECTION.      See    also    INSPECTION    OF    GRAIN;    TKU.MINAI. 
INSPECTION, 
owners  have  the  rij^ht  at  all  times  to  inspect  stored  propj'rty..  .111.    12i"> 
of  warehousemen's  books,  by  wliom, .N.  C  (W.i 

INSPECTION   OF   GRAIN.     Sec  also  GRAIN. 

statute  providing  for, Kan.  232 

board  of  transportation  to  exercise  general  supervision  over,  Nclx  517 

laws  governing, *''•   ' '-' 

rules  for, -^Ij'»»-  ^^-'^ 

exclusive  control  of  inspectors  and  weiglunasters, Kan.  2.17 

right  of  l>oard  of  trade  to  provide  for, A'«n.  251 

fund  from,  to  be  placed  in  state  treasury, Neb.  530 

rules  for  government  of  inspectors, Ill-   13S 

duties  bond  and  fee  to  be  prescribed  by  secretary  of  agriculture, 

Ky.  202 

necessary  expenses  of,  how  paid, Nfh.  518 

rules  for  charges, ^^''^-  ^^^ 

board  of  commissioners  may  fix  charges  for HI.  1 1'.) 

all  moneys  collected  to  be  paid  into  state  treasury Minn.  3<)9 

charges  declared  a  lien  on  inspected  grain,  Kan.  235,  Minn.  397.  Nob.  .5.30 

fees  for,  fixed  by  statute, Kan.  234 

all  grain  to  be   inspected, Mo.   402,   Okia.  0.>S 

grain  mu.st  be  inspected  before  storage, ^'f''-  •'-'- 

must  be  inspected  before  delivery, •  •  ^'"-  ^^'-^ 

when  grain  to  be  submitted  to  grain   inspector  for  grading  or 

dockage, 

appointment  of  inspectors, I»J-  '^O,  Kan.  2.J- 

appointment,    removal,    qualifications   and   compensation   of   in- 

.  Kv.  202 

spectors, •     _ 

appointment  of  inspector,  weigher  and  registrar, «v.\  •  -'»- 

oath  and  bond  of  inspectoi-s HI-  i:^«.  I^""-  "'^•'^ 

api)oint  incut    of    chief    inspector, ,■,■'.,. 

111.  135,  Minn.  3'.)  I.  M...    15'.),  N.-b.  51.>,  ( )kla.  O-^O 

chief  inspector  to  have  general  supervision, ^M''    Jj^ 

oath  of  chief  inspector, ^' 


884  INDEX. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  arc  in  italics. 

INSPECTION  OF  GRMS— Continued.  page 

oath  and  bond  of  chief  inspector, Mo.  472,  Okla.  667 

duty  of  chief  inspector, 111.  136,  Neb.  516,  Okla.   656 

duty  and   compensation  of  inspectors, Ind.   191 

chief  inspectors  to  make  monthly  report  to  auditor  of  state,  Kan.  235 

inspectors  may  examine  warehouses, Ind.  189 

only  qualified  inspectors  to  act, Kan.  237 

inspectors  to  be  governed  by  rules  of  lioard  of  railroad  and  ware- 
house   commissioners, Mo.  472 

"legally  appointed  inspectors"  defined, III.   164 

appointment    of   assistant   inspectors, 

111.  136,  Kan.  233,  Neb.  516,  Okla.  667 

appointment  of  deputy  chief  inspector, Okla.  667 

deputy  and  assistant  inspectors,  how  qualified, Mo.  472 

oath  and  bond  of  assistant  inspectors, 111.  137,  Okla.  668 

lack  of  authority  for  appointment  of  inspectors  of  class  B III.  128 

board  of  commissioners  to  fix  compensation  of  inspectors, . .  Okla.  669 

pay  of  inspectors  and  assistants, Neb.  517 

compensation  of  inspectors, 111.  137,  Mo.  473,  Neb.  517 

expenses   of   inspectors, 111.   138 

salaries  of  assistant  inspectors  and  employees, Kan.   235 

inspectors  to  close  and  reseal  cars  after  inspection, Minn.   404 

inspectors  to  examine  condition  of  cars  of  grain, Minn.   404 

inspectors  may  examine  grain  at  all  times, Minn.  393 

state  weighmaster  to  be  appointed, Neb.  530 

scales  subject  to  inspection  and  test, Mo.  470,  Neb.  521 

grain  not  to  be  mixed  until  inspected, Okla.   660 

not  to  be  delivered  unless  inspected, Okla.   659 

rights  of  owner  when  dissatisfied  v.'ith, .  .  .  .111.  143,  Kan.  248,  Neb.   522 

charges  for,  must  be  paid  before  receipt  issued, Ind.   185 

inspector  to  make  a  statement  in  triplicate, Minn.  411 

restrictions  on  inspector  and  his  deputies, Minn.  396 

may  be  inspected  while  in  railroad  cars  same  as  when  in  ware- 
houses,   Okla.  673 

samples  to  be  furnished  by  chief  inspector, Minn.  398 

bonds  of  inspectors  to  be  filed  with  secretary  of  state, Minn.  395 

removal  of  inspector, Minn.  396,  Okla.  670 

briber}^  of  those  in  inspection  service  a  felony, Kan.  237 

penalty  for  neglect  or  fraudulent  conduct  of  inspectors, ....  Okla.  669 

assuming  to  act  as  inspector,  how  punished, 

III.  142,  Minn.  396,  Mo.  473,  Neb.  522 

complaints  against  inspectors, Minn.   412,   Mo.  474 

misconduct  of  inspectors,  penaltj^  111.  143,  Kan.  236,  Mo.  473,  Neb.  522 

penalty  for  neglect  of  duty  of  inspector, Ky.  266,  Miim.  396 

removal  from  office  of  inspectors  and  others,  how  made, Neb.  518 

appointment  of  arbitration  committee, Okla.   670 

rules  governing  arbitration  committee, Okla.   671 

personnel  of  board  of  commissioners, Okla.  668 


INDEX.  8a5 

References  to  laws  arc  printed  in  rmnnn.     Tlu,sr  i,,  .Icrisiom  arc  in  italics. 

INSPECTION  OF  GRAIN -Continued.  ,,^„^^ 

act  cstablishiiij;   board  of   appeals, •^ji,,,,     jg^ 

Iward  of  appeals  may  report  incoiiipeleiit  iii.spectors Mi„„.  .127 

when  appeal  may  be  taken  to  board  of  appeals Mj,,,,    .y^ti 

appeals  from  chief  inspector  to  coniinittc»e  of  appeals Svh.  529 

decision  of  inspectors  final  unless  appeal  taken Kan  23S,  .Mim,.  '.m 

when  judgment  and  finding  of  chief  inspector  conclusive,.  .  ^Minn.  412 

manner  of  taking  appeal  from  decision  of  inspectors Kan.  23S 

appeal    from  inspector    to    railroad  and   warchonse  c.minis.sion, 

Minn.  397 

appeal  to  arbitration  committee  when  and  how  made Okla.  070 

attorney  general  to  be  ex  officio  attorney  for  chief  inspector, .  .  Kan.  2:iS 

INSPECTION  OF  KEROSENE, 

appointment  of  inspectors, jj    j    711 

inspectors  to  examine  premises  where  .stored, 1{.  I,  ~inj 

duties  of  inspectors, I  >    j    jQg 

penalty  for  putting  uninspected  kerosene  in  l)randed  casks,.  .  U.  I.  710 
fees  of  inspectors, K   j    ygg 

INSPECTION  OF  TOBACCO, 

mode    of, i^I„  4(^2 

book  to  be  kept  by  inspector ^I,j  4^1 

record  of  to  be  kept, Ohio  640 

duties  of  inspectors, Mo.  480,  Ohio,  639 

deputy  samplers,  how  appointed, V-i.  j.vjj 

newly  appointed  samplers  to  give  receipts  to  predecessors \'a.  7.«>1 

appointment  and  term  of  samplers  of  tobacco \":i.  ysO 

appointment  of  in.spectors,  teiuire,  salaries,  etc., Md.  320 

term  of  office  and  qualification  of  inspector, Mo.  480 

appointment  and  qualification  of  deputies, Mo.  4.S.5 

appointment  of  inspector  by  probate  court, Ohio,  636 

appointment  of  chief  clerk, M,l.  32I 

entry  of  appointment  of  inspector  to  be  made  on  court  journal, 

(»liio,  037 

removal  of  samplers, \';i.  7.^9 

removal  of  inspectors, Md.  320 

how  vacancy  in  oflice  of  sampler  of  tobacco,  filled \'a.  7.S1 

manner  of  sampling,  weighing  and  branding  tobacco Va.  7S2 

what  entries  to  be  made  in  books  of  samplers \'a.  7,S5 

inspectors  to  give  bond, Mo.    Isl,  Ohio,  637 

oath  to  be  taken  by  inspectors, ( >!iio,  637 

form  of  inspector's  oath,  and  where  filed Mo.  482 

Cjualifications  and  bonds  of  samplers, Va.  781 

bond  of  chief  inspector, Md.  320 

salaries  of  chief  inspector  and  other  officers,  how  paid, Md.  323 

fees  allowed  inspectors, Ohio,  638 

penalty  for  altering  inspector's  marks Ohio,  639 

fraudulently  packed  hogsheads,  how  to  be  marked, Mo.  484 


886  INDEX. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

LNSPECTION  OF  TOBACCO— Continued.  p.^ge 

inspectors  have  not  an  exclusive  r  ght  to  inspect  all  tobacco,.  .  .Ohio,  638 
absence  of  chief  inspector  on  account  of  sickness,  substitute,.  .Md.'  323 

when  tobacco  to  be  resampled, Ya    734 

re-assortment  of  rejected  tobacco, Ohio    640 

what  sampler's  receipt  to  state  when  tobacco  unsound  or  western, 

Va.  782 

form  of  sampler's  receipt, Va    782 

samplers  required  to  give  receipts, Va.  784 

inspector  must  give  a  receipt, Ohio    641 

penalt}-  for  unauthorized  inspection, Mo.  484 

penalty  against  inspector  for  issuing  false  receipt, Ohio,  642 

penalty  against  forging  inspectors'  receipts, Ohio,  642 

samplers  prohibited  from  dealing  in  tobacco,  penalty,  Ohio,  638,  Va.  785 

w^hen  sampler's  liability  terminates, Va.  785 

neglect  of  in.spector,  penalty, Mo.  481,  Ohio,  639 

samples  to  be  done  up,  how, Mo.  483 

selection  of  samples  to  be  made  by  inspectors, Ohio    640 

proprietor  of  warehouse  liable  if  sample  does  not  represent  package, 

Ohio,  643 
penalties  against  the  appropriation  of  samples  by  inspectors,  Ohio,  641 

sampler's  fees, Va    785 

when  sampler's  fees  to  be  paid, Va.  787 

payment  to  sampler  on  delivery  of  tobacco, Va.  786 

fees  and  charges  for,  by  whom  paid, Mo.  481 

fee  per  hogshead, ^^[Q    4^4 

hogsheads  to  be  numbered, Md    324 

hogsheads  to  be  weighed  and  branded  before  inspection, Mo.  482 

hogsheads  to  be  restored  to  good  shipping  order, Mo.  483 

when  samplers  to  receive  only  half  fees, Va.  786 

fees  for  sale  of  loose  tobacco, Va    787 

division  of  fees  by  samplers,  penalty, Va.  787 

penalty  against  inspectors  taking  illegal  fees, Ohio    639 

amount  of  rent  to  be  paid  samplers, Va.  786 

when  samplers  from  another  warehouse  to  act, Va.  787 

form  of  certificate  of  inspection, Mo.  483 

placing  in  packages  other  substance  than  tobacco,  penalty,.  .Ohio,  642 

daih'  reports  to  be  made  by  clerks, Md.  322 

amount  of  storage  to  be  paid  sampler, Va.  786 

when  inspector  may  rent  storage  room  for  tobacco, Md.  325 

warehouseman  entitled  to  storage  fees  after  three  months, .  .  Ohio,  641 

when  samplers  to  settle  with  proprietors  of  warehouses, Va.  788 

fees  for  warehousing  and  inspection  limited  by  .statute, Mo.  486 

appointment  of  local  inspectors  in  other  towns, Mo.  486 

penalty  for  not  delivering  tobacco  on  demand, Va.  785 

penalty  for  delivery  of  wrong  tobacco  by  sampler, Va.  785 

warehousemen  and  inspectors  not  liable  for  natural  loss  in  weight, 

Mo.  485 


INDEX.  887 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

INSPECTION  OF  TOBACCO— Co7i/iH,icrf.  paue 

scales  and  hands  to  be  furnished  inspector Mo.  484 

warehousemen  to  have  tobacco  inspected, Mo.  4S1 

"western  tobacco"  to  be  so  brandcil Va.  7S3 

deduction  of  tare  from  <;ross  weight, Mo.  4S.'} 

proprietors  of  warehouses  must  insure  all  tobacco  stored, Va.  7S.S 

selection,  duty  and  jurisdiction  of  arbitration  conunittcc, .  .  .  .Md.  .\2.\ 

INSOLVENCY, 

of  warehouseman  having  grain  stored  in  l)ulk, S.  D.  730 

INSPECTORS.      See  also  INSPECTION  OF  GRAIN  ;  INSPECTION 
OF  TOBACCO  ;  INSPECTION  OF  KEROSENE. 

INSPECTOR'S    TICKETS, 

and  "exchange  tickets"  both  outstanding,  carrier  liable, Minn.  Ai'.i 

INSTRUCTIONS, 

factor  not  liable  if  he  obeys  those  of  his  principal, La.  301 

commission  merchants  liable  for  failure  to  obey, La.  29S 

bailee  must  follow  bailor's  instructions, Fla.  95 

INSURABLE  INTEREST, 

warehousemen  have,  in  property  ."Stored, S.  C.  72.8 

warehousemen  have,  in  commingled  grain, Ind.  200 

joint  owners  have, ///.   1 73 

INSURANCE.     See  also  INSURABLE  INTEREST. 

when  warehouseman  may  insure, \la.       5 

warehouseman  may  be  required  to  insure  stored  property, .  .  Mass.  333 
public  warehousemen  must  insure  stored  property  upon  request, 

N.  C.  003,  S.  C.  716 

joint  owners  have  insurable  iyitere.'it, ///.  173 

warehousemen  have  insurable  interest  in  goods  deposited  with  them, 

Md.  329 

compress  company  may  insure  for  full  value, 1  rA:.     32 

evidence  as  to  custom,  when  receivable, ('O.   110 

custom  as  to,  may  be  varied  by  instructions  from  owner, Ky.  279 

custom  to  insure,  consignor  has  right  to  rely  on, La.  303 

when  loss  estimated  on  pro  rata  basis, M(L  32S 

to  be  distributed  pro  rata  among  bailors, la-  "Oo 

publication  of,  by  proprietors  of  tobacco  warehouses Va.  790 

no  implication  to  reduce  .^^torage  charges  on  account  of A  .  1  .  •'>(  I 

a£ts  making  a  ivarehou-feman  an  insurer, -"o.  49.-J 

duty  of  bailor  to  apprise  bailee  of  in.furance  on  goods, Conn.     SO 

of  property  in  bonded  warehouse ^'^-     ^^ 

agreement  to  give  depositor  notice  of  removal  of  goods,  effect,.  .Minn.  437 

double  policies, '  •  '  ~" 

contract  by  warehousemen  to  m.-ntre ' "     "  * 


888  INDEX. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

INSURANCE— Con/mwed.  page 

ichat  statements  on  a  warehouse  receipt  held  to  constitiUe  a  contract  of, 

Minn.  439 

facts  constituting  contract  of  insurance  by  warehouseman, Pa.  699 

contract  of,  when  warehouseman  does  not  become  insurer, Tenn.  756 

contracts  to  keep  property  insured,  construed, Tenn.  756 

icarehousemnn's  liability  for  breach  of  contract  to  insure, Tenn.  757 

when  -statement  in  receipt  not  a  contract  of, Ga.  1 1 5 

implied  contract  passes  with    assignment  or  receipt, Minn.  442 

contract  to  insure  in  bailor's  name, Ga.  1 14 

proprietor  of  tobacco  warehouse  to  keep  open  policy  of, Va.  788 

where  right  of  subrogation  denied  insurer  by  lease,  policy  valid, .  .S.  C.  729 

to  be  made  paj-able  to  holder  of  warehouse  receipt, Minn.  430 

recovery  of,  by  oicner  from  insurers  will  defeat  his  action  against  the 

warehouseman  for  breach  of  contract  to  insure, Tenn.  757 

penalty  for  burning  property  to  injure  insurer, Wis.  817 

where  storage  free  implied  contract  of,  terminates, Minn.  440 

when  premiums  not  recoverable  where  delivery  delayed, Ala.       9 

effect  of  failure  to  make  proof  of  loss  within  time  stated  in  policy,  Ky.  279 
facts  constituting  sufficient  evidence  of  loss, Ky.  278 

INTEREST, 

allowance  of  in  discretion  of  jury,  when, Ky.  278 

allowed  from  date  of  demand  in  case  of  conversion, ....  Ga.  113,  A'.  1^.  586 

rate  of,  on  loans  on  warehouse  receipts, N.  Y.  552 

demand  loans  of  S5,000  and  upwards  may  bear  any  interest,  N.  Y.  557 

INTERPLEADER.     See  also  PLEADINGS. 

when  right  to  exist  in  case  of  disputed  title, Ga.  105 

bailee  cannot  compel  third  party  to  interplead, A^.  J.  548 

warehousemen  cannot  compel  I'arious  claimants  of  the  title  to  stored 
■property  to  interplead, N.  Y.  571 

INTOXICATION, 

evidence  as  to,  of  watchman  receivable, Mass.  347 

INVENTORY, 

to  be  made  where  unclaimed  property  sold, 

Mich.  363,  364,  Neb.  506,  Wa.sh.  805,  Wis.  812 

INVOLUNTARY  BAILEE, 

entitled  to  reasonable  compensation, Neb.  536 

IRREGULAR  DEPOSITS, 

contracts  between  factor  and  principal  partake  of  nature  of, La.  300 

JOINT  LESSEES, 

of  safe  deposit,  right  to  require  presence  of  both  questioned, .  .D.  of  C.     89 

JOINT  OWNERS, 

have  insurable  interest, ///.  173 

duty  of  depositor  as  to  delivery  in  case  of, Cal.     35 


INDEX.  889 

References  to  laws  are  printed  in  rrrman.     Those  to  decisions  arc  in  italics. 

JUDGMENT,  „„.„ 

against  bailee  conclusive  as  to  title, \la.    10,   Ln.  .'{(Mi 

when  paramount  to  factor's  lien, r/a.   1 10 

for  storage  charges  does  not  bar  an  action  for  conversion, .V.  1'.  5G» 

JUDICIAL  NOTICE, 

court  ioill  not  take,  that  one  is  a  ivarehouseman, Win.  828 

JUDICIAL  PROCESS, 

if  warehouseman  deliver  under,  he  is  jrrotected La.  299 

JURORS, 

in  action  to  acquire  warehouse  site  on  railway, S.  Dak.  713 

JURY, 

to  determine  whether  a  transaction  is  a  bailment  or  sale, Ohio,  648 

a  correct  instruction  to,  as  to  ordinary  care, Mas.-i.  345 

to  determine  question  of  ordinary  care, Ohio,  050 

when  question  of  ordinary  care  one  for  jury  and  when  for  court,  Mo.  491 

to  decide  whether  or  not  place  of  storage  was  a  safe  one, Mcu<s.  348 

question  for  negligence  is  one  for, Minn.  437,  .V.  1'.  581 

whether  warehouse  properly  guarded  by  watchmen  question  for  jury, 

X.  i'.  581 

instructions  to,  in  case  of  injury  by  icaler, Pa.  099 

verdict  of  in  action  to  acquire  warehouse  sites, S.  Dak.  744 

charge  to,  when  unclaimed  tobacco  sold, Va.  791 

questions  for,  when  unclaimed  goods  sold  for  charges la.  221 

who  a  bona  fide  holder  of  xuarehouse  receipt,  a  question  for,.  .  .  .Xcl).  538 

question  for,  in  construing  an  ambiguous  icarehouse  receipt,.  ...  To.  794 

fraudxdent  transfer  question  for  jury, Colo.  71 

JUSTICE  OF  THE  PEACE, 

duties  of,  in  case  of  sale  of  unclaimed  property, 

Mich.  363,  Minn.  376,  Neb.  506,  Wash.  804,  Wis.  812,  813 

KEROSENE.     See   also   INSPECTION   OF    KEROSENE;    PETRO- 
LEUM OIL. 
manner  of  storing  may  be  prescribed  by  orilinances R.  L  711 

KEY, 

delivery  of  contents  of  icarehouse  by  delivering  key, .V.  1'.  500 

LANDLORD, 

tenants'  cotton  cannot  be  taken  for  debt  of, <!a.  UK) 

LANDLORD  AND  TENANT  ACT, 

does  not  apply  where  contract  made  regarding  crops, Tn.  707 

LARCENY, 

removal  of  property  by  warehouseman, ^  a.   <  < '.» 

failure  to  deliver  on  demand  declared  to  be,  penalty, S.  D.  730 

wrongful  conversion  by  bailee  declared  to  be,.  .  .N.  H.  541,  Ore.  680 


890  INDEX. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

LARCENY— Continued.  page 

embezzlement    by    bailee    constitutes, Ind.    Terr.  210 

opening  packages  by  bailee  constittdes, Conn.     78 

failure  to  deliver  grain  on  demand, X.  D.  616 

by  night  from  warehouse, Me.  311 

embezzlement  from  warehouse  deemed, Mich.  368 

hy  employee  of  icarehouseman, Qa.  123 

by  assistant  foreman,  form  of  embezzlement, Cat.     62 

from  warehouses,  penalties, Wis.  817 

of  warehouse  receipt,  indictment  for, Minn.  444 

LAW  MERCHANT, 

warehouse  receipts  not  go^•e^led  I)y, Ala.     16 

LEAF  TOBACCO.     See  also  TOBACCO. 

provisions  regarding  the  weighing  of, Va.  793 

oath  to  be  taken  before  weighing, Va.  793 

LEAKAGE, 

warehouseman  not  liable  for, Qal.     58 

LEGAL  PROCESS, 

seizure  of  property  under,  discharges  bailee, Miss.  451 

bailees  not  liable  for  property  taken  by, Pa.  692 

LESSEE, 

liability  of,  ichen  acting  in  capacity  of  agent  and  individually,.  .Ga.  107 

LETTER, 

from  warehouseman  offering  to  compromise  case,  not  proper  evidence, 

Mass.  347 

LL\BIL1TY, 

commences  upon  receipt  of  goods, Ark.     31 

of  warelwuseman,  when  it  attaches, S.  C.  727 

of  warehousemen  coextensive  with  possession, Mass.  340 

of  warehouseman  for  violation  of  warehouse  act, Conn.     75 

for  violations  of  laws  pertaining  to  tobacco, K\-.  209 

of  warehousemen  not  to  be  limited, 111.  133 

limitation  of,   prohibited, T,a.  293 

of  depositor  for  storage  charges, Mass.  338 

common-law  liability  cannot  be  restricted, Ky.  259 

bailees,  affected  by  usage, Tenn.  753 

if  sample  be  mutilated  or  false  weights  used, Kv.  267 

of  warehouseman  cannot  be  lessened  by  designation  as  commission 

merchant, /vy .  274 

of  warehousemen  and  carriers  not  affected  by  warehouse  receipts 

and  bills  of  lading,  when, Wash.  801 

extent  to  which  bailees  may  limit, Tex.  766 

a  valid  .stipulation,  limiting  same, Cal.     48 


I'AOE 


iNi)i:x.  .S!»l 

References  to  laws  arc.  prinled  in  roman.     Thosr  in  ,l,risi,ms  arc  in  italirx. 

LI  A  BILITY—Conlinued. 

of  wareliousemen  not  to  he  liinitc<i  by  words  on  receipts, 

Kan.  213,  Ky.  262,  Minn.  3SS,  Mo.  KiO,  Xol,.  51  I,  N.  1).  Olf., 

Okla.  CG2,  S.  Dak.  733,  Tetm.  TW,  Te.\!  703 

reduction  of,  hrj  bill  of  lading,  extent, Conn.     H'2 

object  of  the  transaction  must  be  considered ///    i(j2 

for  goods  injured  which  are  subsequently  destroyed, V.  }'.  .'>S() 

LICENSES, 

must  be    obtained  r)y   pulilic   wareliousemen, 

111.  129,  Kan.    23i),    Minn.  3S4,  40(),  .Mo.    4o4,  460,  Xel).   510, 

Okla.  657,  S.  Dak'.  732 
must  be  procured  where  a  warehouseman  stores  only  his  own  grain 

Minn.  446 

of  publie  warehousemen  to  be  conspicuou.sly  posted, X.  I).  614 

of  public  warehousemen,  fee  for, .\.  I).  614 

of  public  warehousemen,  how  obtained, .\.  1).  614 

notice  that  warehouse  is  duly  licensed  nui.st  appear  on  Inllheads, 

etc-. Va.   791 

fees  for,  of  public  warehou.semen, .Minn.  3S5,    106 

from  city  also  required, lvy_  j(jq 

to  be  procured  from  county  clerk, Ky.  259 

circuit  court  has  right  to  grant,  when, ///.   i29 

act  requiring  warehouseman  to  -procure,  constitutional, ///.   is2 

statute  concerning  license  of  public  warehousemen  construed, .  .  Minn.  3.SG 

to  be  procured  by  proprietor  of  tobacco  warehouse, Ohio,  637 

if  warehouseman  guilty  of  negligence  his  licen.se  will  be  revoked,  Mo.  170 

penalty  for  doing  warehouse  business  without, 

111.  130,  Ky.  200,  Minn.  407,  Mo.  455,  Okla.  65S,  S.  D.  733 

if  revoked  by  commissioners'  action,  reviewable  by  courts, ///.  163 

cancellation  of  warehousemen's  licenses, Xel).  525 

cancellation  of,  by  railroad  and  warehou.se  comini.ssion, 111.   153 

revocable  by  circuit  court, .  ., Ky.  259 

revocation  of  public  warehousemen's, Minn.    KM> 

LIEN.     See  also  EQUITABLE  LIEX;  TIMBER  LIEXS. 

warehousemen  have,  for  advances  and  c-harges, 

Cal.  37,  D.  of  C.  86,   Ida.    124,  Ind.  203,  Iowa,  215,  X.  J.  546, 

N.  Y.  553,  11.  I.  706,  Utah,  772,  Wash.  SOI,  Wyo.  .S33 

extends  to  charges  paid  by  warehousemen, Mich.  353 

carrier  has,  on  freight  and  baggage, Colo.  66 

what  warehousemen's  lien  covers, Mich.  352 

of  carriers,  warehousemen  and  agisters Ore.  67S 

for  storage  charges  ami  for  advances  for  freight  distinguished, . .  Minn.  43(1 

factor  has Ida.  1 24 

statutory  lien  for  storage  charges, Conn.  76 

given  those  who  store,  render  .service  to  articles,  etc., Okla.  674 

factors,  brokers  and  agents  given  liens  for  advances,  etc.,. . .  .Wis.  815 


892  INDEX. 

References  to  laios  are  jrrinted  in  roman.     Those  to  decisions  are  in  italics. 

lAEN— Continued.  page 

manner  of  enforcing  liens  of  warehousemen,  carriers  and  agisters, 

Ore.  679 

for  charges  paramount, D.  of  C.     89 

statute  concerning  construed;  conversion, Mich.  368 

statute  prescribing,  construed, Mich.  352 

act  of  congress  giving  lien,  mandatory, D.  of  C.     89 

superior  to  claim  for  advances, Ga.  110 

possession  essential, X.  H.  542 

if  goods  be  surrendered  only  stipulated  lien  remains, ///.   166 

lost  if  possession  lost, Del.  85,  Miss.  450 

lost  if  possession  be  lost,  not  revivable,  when, ///.  166 

not  necessarily  lost  with  possession  in  case  of  pledge, Mass.  343 

only  for  debts  arising  from  relationship  of  wareho^iseman, Ky.  276 

none  on  cotton  except  for  storage  and  connected  charges, Miss.  450 

at  common  law  and  by  statute  distinguished, N.J.  548 

must  be  regularly  engaged  in  warehouse  business, N.  Y.  575 

of  warehousemen  favored  by  the  laio, Mo.  493 

if  bailor  in  lawful  possession,  lien  attaches, Wyo.  837 

if  one  entitled  to  storage  charges,  lien  attaches, Wyo.  837 

storage  charges  continue  tvhen  warehouseman  holding  under,.  .S.  C.  728 

is  specific  not  general, Pa.  697 

is  general  and  not  specific, X.  Y.  576 

extends  to  balance  of  goods  stored  for  charges  on  entire  lot, 

X.  Y.  576,  S.  C.  728 

warehouseman  has  not  a  general  lien  for  balance  due, Miss.  450 

extends  to  advances  and  charges  against  any  goods  belonging  to 

o-miers  of  stored  goods, Mich.  353,  N.  Y.  553 

may  hold  goods  for  all  legal  demands  against  owner,  Mich.  372,  N .  Y .  576 

none  for  other  indebtedness, Ark.     30 

on  goods  remaining  after  partial  delivery, Mass.  343 

of  pledgee  superior  to  warehouseman's,  when, Ky.  276 

when  rights  of  bona  fide  purchaser  not  affected  Ijv, Wyo.  836 

consignee  has,  extent  of, Ohio,  628 

on  freight  for  storage, Ohio,  632 

of  warehousemen  not  impaired  by  decree  in  case  of  lost  warehouse 

receipt, Pa.  694 

charges  for  inspecting  grain  a  lien  thereon, 

Kan.   235,   Minn.   397,   Xeb.   530 

may  be  waived  by  special  contract, N.  H.  542 

none  attaches  if  contrary  to  terms  of  the  contract  of  bailment, .  .  .  .Xeb.  537 
may  be  created  by  deliver}^  of  warehouse  receipt  or  bill  of  lading. 

Mo.  458,   Pa.  688 

holder  of  warehouse  receipt  has, Neb.  507 

luhere  bailee  converts  property  he  may  set  off  amount  of  his  lien,  X .  J .  548 

property  may  be  sold  to  satisfy, Cal.  37,  N.  Y.  553 

expenses  of  sale,  a  lien  on  proceeds, Conn.     77 

remedy  for  enforcement  of  not  exclusive, N.  Y.  555 


INI>EX.  HH8 

References  to  laws  are  printed  in  nnnan.     Thonc  to  iLxinionH  arc  in  iUilicH. 

LIEN — Continued.  ,..,,.. 

sale  under,  manner  of, D  ,,f  (j      j^jj 

poii.sc8sion  essential,  rule  stated, V^, /,    537 

vendor's  lien  superior  to  wareliousenian's, I^-i    295 

when  shcrifj  stores  goods,  irarcltouscman   protected, Mo.    193 

of  warehousemen  on  unclaimed  or  perishable  property 

la.    215,    Minn.  37S 
where  a  purchaser  takes  with  notice  of,  warehouseman  protected.  A'.  }'.  577 

warehouseman's  superior  to  chattel  mortgage,  when 

Mich.  :«4.  N.  y.  563,  Wyo.  S35 
of  warehouseman,  ivhen  superior  to  unrecorded  chattel  mortgngr,  S .  Y .  570 

warehouseman's  subordinate  to  a  chattel  mortgage,  when, 

Mo.  11)3,  .V.  r.  .-)7r, 

warehouse  receipt  must  contain  notice  of, Ind.  191 

if  on  stored  property  must  appear  on  warehouse  receipt Ky.  256 

not  lost  by  fraudulent  issue  of  receipt, ///.   100 

is  not  subject  to  attachment  as  property  of  warehouseman, ///.   167 

bailee  cannot  create,  as  against  bailor, Mc  313 

existence  of,  will  not  justify  conversion, Mich.  36S 

does  not  extend  to  persons  employed  by  bailee, Fla.     95 

ivhat  constitutes  ivaiver  of, 1  rA-.  30,  Cal.  54 

may  be  terminated  by  tender  of  amount  due, l/o.    193 

LIMITATION, 

of  time  within  which  erection  of  warehouse,  on  railway's  ri^ht  of 
way  must  be  begun, Minn.    120 

LITTLE  FALLS, 

made  a  terminal  point, ....'. Minn.  402 

LIVE  STOCK, 

is  perishable  property  within  meaning  of  statute, Ohio,  633 

LOADING, 

warehousemen  liable  for,  when, X.  Y.  563 

LOANS, 

demand  loans  of  $5,000,  and  upwards  may  liear  any  interest,  N.  V.  557 

LORD'S  DAY.     See  also  SUNDAY. 

business  on,   prohibited, Me.  312 

LOSS  OF  GOODS.     See  also  LOSS  BY  FIRE;  LOSS  BY  THEFT; 
LOSS  BY  WATER,  etc. 

LOSS  OF  GOODS, 

warehouseman  need  not  show  jyrecise  manner  of Mass.  345 

proof  that  it  occurred  without  fault  of  warehouseman  suljicitni.  Mass.  3 16 
bailee  may  recover  full  value  for, Conn.     4  s 


894  INDEX. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

LOSS  BY  FIRE,  page 

extent  of  warehouseman's  liability, Tex.  769 

warehousemen  not   responsible   for,   if  reasonable  care  be  used, 

Cal.  38,  44,  Mo.  468,  Xeb.  519,  Okla.  664 

duty  of  warehouseman  in  case  of, Ky.  264 

degree  of  diligence  required, X.  C.  609 

when  warehouseman  liable  for, Minn.  390 

when   warehousemen    not   liable, 111.    139,    Ind.    187,    Ky.    264 

warehouseman  to  use  his  best  judgment  iu  case  of  fire, X.  C.  609 

not  to  take  suggestions  from  bailor  or  others  as  to  meayis  of  preserva- 
tion,   A'.  C.  609 

duty  to  remove  ivhiskey  from  warehouse  during  night-time, Ky.  277 

warehouse  employees  present  at  a  fire  during  niglit-time  not  obliged 

to  rescue  goods, Mass.  343 

evidence  as  to  accumulation  of  property  near  by,  receivable, .  .  .X.  C.  610 
warehouseman  liable  where  presence  of  goods  in  ^carehouse  due  to  his 

negligence, Minn.  437 

dangerous    surrounding    conditions ;    loss     must    result    therefrom. 

Miss.  451 

evidence  as  to  refining  ivorks  near  warehouse  excluded, Mo.  495 

not  liable  unless  negligence  be  shown, 

Ala.  14,  Ga.  112,  Kan.  253,  La.  301,  .V.  Y.  580,  Pa.  699,  Tenn. 

755,  Tex.  768 
burden  of  proof  on  plaintiff,  Mass.  347,  Pa.  701,  Tenn.  755,  Tex.  769 

warehousemen  not  liable  for,  if  vigilance  be  used, Mich.  360 

facts   constituting   negligence, Ore.    684,    Tex.    769 

facts  constituting  gross  negligence  in  case  of, X.  D.  626 

notice  to  be  given  to  owner, Ky.  264 

facts  stated  which  should  have  gone  to  fury  on  question  of  negligence, 

X.  Y.  581 
statement  by  warehouseman  that  goods  are  not  in  his  possession  con- 
stitutes negligence, Tenn.  755 

valid  stipulation  in  bill  of  lading  against  liability  for, Tenn.  758 

where  warehouseman  attempts  to  excuse  non-delivery  on  this  plea  he 

has  the  burden  of  proving  absence  of  negligence, A'.  D.  626 

notice  discJaiming  liability  for,  when  valid, Me.  313 

when  action  for  goods  destroyed  must  be  brought  under  the  contract, 

Mass.  344 
depositor  may  recover  against  railroads  if  negligence  be  shown,  re- 
gardless of  latter's  contract  with  warehousemen, Cal.     57 

evidence  that  watchman  was  of  intemperate  habits,  receivable,  Mass.  347 

warehousemen  liable  if  of  incendiary  origin, Cal.     57 

insufficient  declaration  in  case  of, Pa .  700 

ivhen  opinion  evidence  receivable, 1  la.     1 1 

failure  to  .'icll  ivithin  reasonable  time  not  }rroximate  cause, Ala.     14 

facts  constituting  contract  of  insurance, Pa.  699 

valid  claim,  for  storage  charges  up  to  date  of  fire, .Ma.     12 

carrier  liable  for, Mass.  344 


INDKX.  895 

Referenccfi  to  /aw.s  are  printed  in  romnn.     Those  to  f/r^i,s^oH.s  arc  in  italics. 

LOSS  BY    THEFT.     See  iiho  STOLhW  GOODS.  i-aoe 

warehouseman.'' a  liability  in  case  of, Kij.  272 

burden  on  plaintij]  to  show  warehouseman's  ncgliyenre, V.  >'.  5H2 

when  reputation  of  bailee  not  in  issue, \'a.  T.trt 

penalty  for  larceny  from  warehouse, Wis.  SI 7 

what  defendant  must  show  to  exonerate  himself, N.  Y.  5S.') 

protection  by  watchman,  question  for  jury, .V.  1'.  .Wl 

when   defense  of,  cannot  be  interposed, Colo.     71 

LOSS  BY  WATER, 

what  not  reasonable  care  in  attempted  preservation  of  goods,.  .  .  .Md.  32S 

unprecedented  rise  of  river, Mo.  -19 1 

question  of  negligence  one  for  the  jurji, I'n.  (iOO 

LOSS  OF  PROPERTY, 

liability  of  warehousemen  for,  rule  staled, Mass.  3  K) 

warehousemen  need  not  show  precise  manner  of, Mass.  340 

LOSS  OF  WEIGHT, 

burden  of  proof, Ga.   113 

LOST  PROPERTY.     See  UNCLAIMED  PROPERTY  ;  AH.\NI)()M:U 
PROPERTY. 

MACHINERY, 

grain  may  be  run  through,  when, Mo.    103 

MAGISTRATES, 

may  sell  property  left  with  mechanics  for  repairs, S.  C.  721 

MANUFACTURING  COMPANY, 

cannot  act  as  a  warehouseman, hid.  2()() 

MARKS.     See  BRANDS  AND  MARKS. 

MAYOR, 

and  board  of  aldermen  to  have  control  of  warehouses Miss.  449 

MEASURE  OF  DAMAGES, 

of  property  damaged  while  in  storage,  rule  stated, N.  C.  61 1 

place  of  injury  is  a  factor  in, hid.  20') 

ordinary   rule    where    property   converted, 

111.  173,  Mass.  347,  N.  Y.  5S6.  R.  I.  71G 

when  conversion  willful  and  when  not;  rule  stated Minn.  43S 

rule  where  property  converted  xcas  held  awaiting  belter  jjrices, Im.  303 

the  purchase  price  does  not  always  govern, .      .'  "''**" 

interest  allowable  from  date  of  demand G"-  1 1'^.  -^     ^  •'''^'_' 

average  price  where  market  fluctuating •  •  •  •'"''•  -*'•* 

usual  rule  as  to,  applies  in  spite  of  stipulation  in  bill  of  lading  fi.ring 

damages, T""""-  '^^ 

value  of  bailee's  special  property, G"o.  103 


896  INDEX. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

MEASURE  OF  DAMAGES— Continued.  page 

where  bonds  are  lost,  is  value  at  time  of  theft, Md.  329 

when  on  pro  rata  basis  to  goods  rescued, Md.  328 

in  case  where  article  delivered  is  of  inferior  quality, Kan.  253 

value  on  date  of  demand, Ind.  205 

value  of  property  at  the  date  of  conversion, Ky.  278 

where  taking  not  tortious, III.  173 

MECHANIC, 

when  property  left  with,  for  repan-s  may  be  sold, S.  C.  724 

MINING, 

a  mining  corporation  cannot  issue  tcarehouse  receipts, Ind.  207 

MINNEAPOLIS, 

warehouses  in,  where  grain  mixed,  declared  public  warehouses, 

Minn.  384 

"MINNESOTA  GRADES," 

of  grain  to  be  established, Minn.  398 

MISDELIVERY, 

constitutes  conversion, N.  Y.  583 

'Warehousemen  liable  in  case  of, N.  Y.  584 

due  to  misinformation  from  former  owner  of  warehouse, Mass.  345 

if  not  to  bailor  or  his  order  it  constitutes, Ky.  277 

if  made  on  sampler's  ticket, IJl  172 

to  one  holding  unindorsed  bill  of  lading, Cal.  56 

MISDEMEANOR, 

violation  of  certain  sections  of  warehouse  act,  declared  to  be, ...  . 

N.  Y.  556,  Okla.  667,  S.  D.  739 
penalty  for  commission  of  those  defined  in  warehouse  act,.  .Minn.  414 

refusal  to  obey  subpoena  of  board  of  commissioners, Okla.  673 

issuance  of  fictitious  warehouse  receipts  and  bills  of  lading  de- 
clared to  be, N.  Y.  559 

neglect  or  fraudulent  conduct  of  grain  inspector, Okla.  669 

assuming  to  act  as  a  grain  inspector, Okla.  669 

the  unlawful  breaking  of  seals, Minn.  405 

to  state  false  grade  or  weight  of  grain  in  warehouse  receipt,  Minn.  411 

MISFEASANCE, 

exemptions  in  bill  of  lading  not  valid  against, Colo.     73 

MISJOINDER  OF  PARTIES, 

in  case  for  conversion,  effect, Kan.  250 

MISSING  PROPERTY, 

the  proprietors  of  cotton  press  liable  for  missing  cotton, La.  302 


INDKX.  i^()^J 

References  to  laws  are  printed  in  romaa.     Those  to  deriMons  are  in  italirs. 
MISTAKE, 

where  property  delivered  through  mistake  replevin  will  lin, .... 

.     .  Mich.   350,   Vii.  002 

m  issuing  duplicate  warehouse  receipts,  good  defense, Ohio,  Grtr* 

property  lost  hy,  when  not  incompatible  with  ordinary  care,  MnJ.  34r, 
warehousemen  liable  for  innocent  mistakes  in  delivering  ]>ro,^ly, 

X.   Y.  584 

MIXING  OF  GRAIN.     See  COMMINGLING  OF  GRAIN. 

MIXTURE  OF  SPIRITS, 

United  States  entitled  to  fair  proportion  of,  for  taxes  due, Mass.  342 

MOB, 

when  goods  destroyed  by  warehouseman's  negligence  must  be  shown. 

Ark.     32 
MONEY, 

person  intrusted  with,  as  advances  against  property  represented 
by  warehouse  receipts, Mj    3jg 

MORTGAGE.     See  also  CHATTEL  MORTGAGE. 

effect  of  segregation  of  stored  goods, fa/      55 

may  maintain  action  against  warehouseman  for  conversion,.  .  .  .Cal.     50 
mortgagee  in  possession  of  personal  property  deemed  bailee,  when, 

Ore.  680 

NAME, 

warehousemen  cannot  lessen  liability  by  change  of, A' 7.  274 

goods  standing  in  wrong  name,  when  ivarehouseman  not  liable  for 
misdelivery, j/^^.^    345 

NATIONAL  BANK, 

under   U.  S.  Rev.  Stats,  may  hold  warehouse  receipts  as  collateral, 

Ohio,  654 

NEGLIGENCE.      See    also    IMPUTABLE   NEGLIGENCE;     GROSS 

NEGLIGENCE  ;   GROSS  NEGLECT. 

defined, Fla.  95,  R.  I.  712 

facts    constituting, 1  rA-      31 

warehousemen  liable  for  loss  or  damage  resulting  from Okla.  605 

liable  for  damages,  the  result  of, N.  C.  609,  Tex.  76S 

warehousemen  not  liable  in  absence  of, Wis.  827 

the  loss  or  injury  must  be  connected  with, Mis.t.  451 

will  be  presumed  against  depositarj*  if  he  failo  to  explain   injury 

to  goods, Cal .     3G 

a  bailee  for  hire  answerable  for  ordinary  negligence, .V.  //.  541 

must  be  shown  to  hold  irarehou.^eman  liable Ind.  204,  Minn.  390 

bailee  cannot  by  contract  lessen  his  liability  for  Ticgligencc, 1'/.  775 

57 


898  INDEX. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

l^iEGUGE^CE— Continued.  page 

stipidalions  against  in  bill  of  lading  void, 

Colo.  73  Conn.  S2,  D.  of  C.   91,  La.  307,  .l/as,s.  350,  Me.    314, 

Tenn.  759 

punishment  of  warehousemen  guiUy  of, Mo.  470 

in  failing  to  deliver  promptly,  loss  by  fire  foUoiving, Minn.  437 

must  be  shown  to  hold  warehouseman  liable  for  loss  by  fire, 

Kan.  253,  .V.  Y.  580,  Tenn.  755 

facts  constituting,  in  case  of  loss  by  fire, Ore.  684 

facts  tending  to  shotv, Tex.  769 

when  false  statement  that  goods  are  not  in  warehouseman's  possession 

amounts  to, Tenn.  755 

ivliat  degree  of,  must  be  shown  where  goods  injured  while  in  cold 

storage, Pa.  700 

allowing  brine  pipes  to  drip,  held  to  be, Minn.  438 

a  question  of  fact  for  the  jury, Minn.  437,  ^V.  Y .  581,  A"".  Y .  582 

questions  for  court  and  jury, Ga.  104 

there  must  be  none  in  cose  of  loss  by  accident, Ky.  278 

must  be  shown  where  goods  destroyed  by  mob, Ark.     32 

burden  on  plaintiff  to  show, Ky.  278,  Mass.  346,  Pa.  699,  Tex.  769 

burden  of  proof  on  plaintiff  throughout, N .Y .  583 

if  it  be  not  alleged  but  defendant  sets  up  manner  of  loss,  burden  is  on 

defendant,   Mass.  346 

misdelivery  a  conversion, N.Y.  583 

what  the  defendant  must  prove, N^.  Y.  583 

of  carrier  cannot  be  imputed  to  oivner, Miss.  451 

wheyi  failure  to  inspect  goods  does  not  constitute, Cal.     58 

presumption  of,  if  warehouse  collapses, iV.  F .  582 

liability  for,  cannot  exceed  declared  value  of  the  goods, Cal.     36 

storing  of  powder  constitutes, Colo.     70 

liability  for  injuries  to  visitors  at  warehouse, Cal.     62 

NEGOTIABILITY.     See  WAREHOUSE  RECEIPTS ;  BILLS  OF  LAD- 
ING. 

NESTING, 

of  tobacco  forbidden,   penalty, Ky.   269,   Va.  789 

NEW  PRAGUE, 

declared  to  be  a  terminal  point, Minn.  429 

NJGHT, 

if  fire  occur  at,  warehouse  employees  not  obliged  to  rescue  goods,  Mass.  343 

NOTICE.     See  also  .\CTUAL  NOTICE. 

under  warehouse  act,  rule  governing ^'^'osh.  803 

of  sale  for  storage  charges  must  be  given,  manner  of, 

Conn.  76,  la.  215,  Ky.  2.58,  Me.  310,  Mich.  350,  X.  C.  604,  R.  I. 

707,  S.  C.  719,  Wash.  802,  Wyo.  S.34 

copy  of,  to  be  kept  when  freight  sold  for  charges, Ohio,  633 


INDEX.  899 

References  to  laws  are  imnted  in  roman.     Those  to  decisions  are  in  italics. 

NOTICE— Continued.  ,.^Qg 

of  sale  of  freig;ht  for  charges,  how  given, Ohio    6;il 

of  sale  for  charges,  bonded  warehouses, CJn.     yg 

statntorij  notice  of  sale  for  charges  must  be  given, ....  Ind.  I'O'J  la.  210  221 
what  constitutes,  to  warehouseman  of  adverse  claim  of  title  to  goods 

offered  for  storage, ^Y.  I).  624 

how  to  be  given  owner  of  receipt  of  property, Ohio,  fi-'JO 

rate  of  storags  cannot  be  changed  by  a  posted  notice, Ga.  1()9 

to  be  given  when  grain  is  not  to  be  stored, Xeb.  522 

to  be  given  owner  where  property  left  without  directions,.  .Nelj.  505 

carriers  obliged  to  give  to  consignee, Kan.  '2'M 

to  consignee  as  to  true  ownersliip  of  property, Ohio,  028 

when  recordation  of  chattel  mortgage  is  not, Kg.  274 

when  recordation  of  chattel  mortgage  constitutes, Ala.     11 

to  vendee  or  pledgee  of  goods  by  warehouse  receipt  of  real  owner's  title, 

Wis.  S28 
facts  constituting  insufficient  notice  to  warehouseman  of  pledge,  Pa.  698 

of  grain  being  out  of  condition,  publication  of, 

Kan.  246,  Minn.  390,  Xclx  519 

of  sale  of  damaged  grain, Kan.  231 

to  be  given  where   demand   for   property    is   made  bj'  one   not 

holding  receipt, X.  Y.  .561 

to  be  given  owner  if  goods  destroyed  by  fire, Ky.  2(54 

of  loss  by  fire,  what  sufficient, Ky.  278 

disclaiming  liability  for  loss  by  fire,  when  valid, Me.  313 

to  be  given  owner,  when  known,  of  receipt  of  unclaimed  property, 

Wash.  803 
to  be  given  when  possible  to  owner  of  unclaimed  property,  Mich.  362 

to  be  given  of  sale  of  unclaimed  property, 

Minn.  375,  378,  Xeb.  506,  Vt.  773,  Wash.  804,  Wis.  811 

required  when  perishable  property  sold, Wash.  806 

of  irregularity  on  a  warehouse  receipt,  followed  by  inquiries,  effect, 

X.  y.  597 
where  a  warehouse  receipt  is  both  x.s.sued  in  the  name  of  and  signed  by 

the  president  of  warehouse  company,  this  constitutes, .V.  1'.  596 

of  unpaid  purchase  price  and  tax  must  appear  on  warehouse  receipt, 

Conn.     SO 

of  non-payment  of  purchase  price  must  appear  on  receipt, 

A'i/.281,3/inn.  439 
what  constitides,  on  warehouse  receipt  of  unpaid  purchase  ]>rice,  Ky.  280 
of  advances  made  against  stored  grain  must  appear  on  the  ware- 
house receipt, Minn.  3S0 

of  assignment  to  be  mailed  assignee  or  transferee, D.  of  C.     S6 

in  case  of  pledge, /"■   1  >  1 

of  acceptance  or  rejection  of  compensation  for  erection  of  ware- 
house on  carrier's  right  of  way, Miim.    116 

issuance,  revocation,  etc.,  of   warehouseman's  license  to  l>e  pul)- 
lished, Mass.  334 


900  INDEX. 

References  to  laivs  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

NOTICE -Continued.  page 

of  attachment  to  be  given  owner  by  warehouseman, Mich.  359 

of  appeal  from  chief  inspector  of  grain, Neb.  529 

NUMBERS, 

warehouse  receipts  to  bear  consecutive  numbers, 

Minn.  387,  Mo.  464,  Okla.  660,  Neb.  512,  S.  Dak.  733 

OATH, 

statement  under  oath  to  be  made  by  warehousemen  on  request, 

Okla.  666 
of  appraisers  where  property  to  be  sold  for  storage  charges,  Wyo.  834 
to  be  taken  before  weighing  leaf  tobacco,  form  of,.  .N.  C.  607,  Va.  793 

of  tobacco  inspector,  form  of, Mo.  482,  Ohio,  637 

of  tobacco  inspector,  where  filed, Mo.  482 

of  chief  inspector  of  grain, 

111.  136,  Kan.  233,  Mo.  472,  Neb.  516,  Okla.  667 

of  assistant  grain  inspectors, Minn.  395,  Neb.  516,  Okla.  668 

of  members  of  committee  of  appeals, 111.  148,  Neb.  529 

to  be  taken  by  menibers  of  board  of  appeals, Minn.  427 

of  railroad  and  warehouse  commissioners, 111.   151 

OBJECT, 

the  real  object  of  a  transaction  to  be  considered, III.  162 

ODORS, 

injury  by,  to  goods  in  cold  storaye, Ind.  204 

ONUS, 

on  defendant  after  prima  facie  case  made  out, hid.  204 

OPINIONS, 

in  regard  to  safety  of  warehouse,  difference  between  and  statements  of 
facts, iV.  Y.  587 

OPTION, 

the  holding  of  an  option  to  buy  does  not  constitute  a  sale, Minn.  432 

ORAL  AGREEMENT, 

when  evidence  of,  receivable,  warehouse  receipt, la.  224 

ORDERS  ON  WAREHOUSEMEN, 

when  title  passes  by, Cal.     61 

an  order  for  "balance  due,"  sufficiently  definite, Mass.  349 

inference  that  a  non-negotiable  receipt  was  issued, Cal.     60 

ORDINARY  CARE.     See  also  REASONABLE  CARE;  WATCHMEN. 

defined, 

Ala.   7,   Ga.    104,   Minn.   433,  Neb.  536,  .V.  Mex.  550,  N.  Y. 

565,  S.  C.  726,  Tenn.  753,  Wis.  827 

warehousetnen  only  bound  to  the  exercise  of, 

Ark.  30,  Cal.  36,  Del.  85,   Ind.   201,    Mass.    340,    Miss.  450, 

Mo.  491,  Okla.  675,  Pa.    696,    Tex.    767,    Vt.   775 


INDILX.  <J(J1 

References  to  laws  are  printed  in  romnn.     Those  to  dccisiom  are  in  italics. 


i'AtiE 


ORDINA  R  Y  CA  RE— Continued. 

does  not  impose  duty  of  closely  inspecting  .stored  casks, Cal.     GS 

how  same  determined, Ohio    GW) 

care  of  own  property,  no  criterion, Ala.       7 

lack  of,  u'hen  goods  stolen, /v  7.  272 

want  of,  in  one  particular,  effect, Ala.       7 

liability  of  warehouseman  when  known  not  to  have  any  knowledge  of 

tobacco, s.  C.  Gil 

removal  to  another  place  of  storage,  equally  safe,  not  violative  of,  Conn.     78 

o  question  of  fact  for  jury, X.  Y.  505 

questions  for  court  and  jury, Mo.  4\)\,  Ohio,  G50 

improper  charge  to  jury, Ga.  1 13 

correct  instruction  to  jury, ///.  IGl,  Mass.  345 

proprietors  of  bonded  irarchou.'^cs  obliged  to  exercise, X.  Y.  571 

evidence  of  custom  not  conclusive  as  to, Minn.  433 

ORDINARY  DILIGENCE.     See  ORDINARY  CARE. 

defined,   Ga.   102 

OUT  OF  CONDITION.     See  GRAIN  ;  CONDITION. 

OVERCHARGING, 

for  elevating  crain,  a  misdemeanor, N.  Y.  557 

OVERPOWERIXG  FORCE, 

if  goods  taken  by  less  than,  bailee  liable, La.  303 

when  good  excuse  for  failure  to  deliver  on  demand, La.  302 

facts  insufficient  to  constitute, La.  3')2 

where  loss  by,  warehouseman  must  show  diligence, La.  302 

OWNER, 

warehouseman  holds  for, Ca.  105 

may  examine  warehouses, Ind.   ISO 

receipt  must  be  issued  to, la.  224 

notice  to  be  given  to,  of  receipt  of  property, Ohio,  G30 

to  receive  notice  where  property  left  without  directions, Nel).  505 

may  examine  property  and  warehouse  books, Neb.  510 

when  depositary  may  notify  true  owner  that  he  liolds  his  good.s,  Cal.  35 

of  tobacco  to  approve  sale  of, Mo.  4  ;5 

has  right  to  examine  stored  property, Mich.  360,  Mo.  470 

warehouseman  must  obey  directions  of Kan.  250 

unlawful  for  warehouseman  to  disobey  directions  of Minn.  39S 

delivery  by  bailee  to  bailor,  after  notice  of  claim  of,  conversion,  Tex.  7G7 
remedy  of,   where  propertv  fraudulently   hypothecated  or  sold, 

Ohio.  030 

protected  where  warehouseman  sells  stored  grain Mum.  434 

delivery  to  always  a  good  defense, '/«•  ^^.  .^^i*-*.  -152 

may  compel  delivery  of  his  goods  stored  by  another,  Tex.  700,  H'l'-i.  825 


902  INDEX. 

References  to  laivs  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

OWNER — Continued.  page 

how  far  factor,  shipper  or  agent  considered  owner  of  goods  in  his 

charge, Me.  308 

rights  of,  where  property  pledged  or  deposited  by  factor  or  other 

agent, Me.  308,  N.  Y.  558,  Ohio,  629 

jyrotected  where  factor  pledges  warehouse  receipt, La.  304 

rights  of,  if  dissatisfied  with  grain  inspection, 

111.    143,    Kan.    248,    Neb.   522 

personally  liable  for  storage  charges, S.  C.  721 

warehouseman's  lien  extends  to  all  legal  demands  against, 

Mich.  372,  N.  Y.  576 
entitled  to  surplus  from  sale  for  storage  charges,  la.  217,  Mass.  337 
to  receive  notice  of  disposition  of  unclaimed  property,.  .  .  .Mich.  362 
when  entitled  to  balance  from  proceeds  of  sale  of  unclaimed  prop- 
erty,   Mich.    364,    Neb.    507 

grain  not  to  be  removed  without  authority  of, Minn.  382 

OWNERSHIP.     See  also  OWNER. 

no  presumption  of,  from  possession  by  factor,  broker,  etc., La.  298 

names  appearing  in  bill  of  lading  not  conclusive  as  to, Miss.  453 

PACKAGES, 

warehousemen  not  bound  by  statements  as  to  contents  of  sealed  pack- 
ages,   N.Y.  590,  N.  D.  622,  Wis.  829 

opening  of,  by  bailee,  larceny, Conn.     78 

bailee  not  bound  to  know  contents  of, Pa.  696 

PACKING, 

warehousemen  liable  for,  when, N.Y.  563 

PARAGRAPH, 

warehouse  receipts  must  be  paragraphed  for  hypothecation, La.  305 

PAROL  EVIDENCE.     See  also  EVIDENCE. 

receivable  to  explain  an  ambiguous  warehouse  receipt, Va.  796 

admissible  to  show  that  warehouse  receipt  was  issued  by  one  as  agent. 

Ore.  685 

when  receivable  to  interpret  toarehouse  receipt, Kan.  253 

when  not  admissible  to  vary  ivarehouse  receipt, 

III.  181,  Ind.  207,  224,  N.  Y.  589,  Term.  758 

admis.sible  to  explain  .signature  to  ivarehouse  receipt, Minn.  445 

not  receivable  to  vary  contract  in  xvarehoiise  receipt, Minn.  444 

receivable  to  explain  meaning  of  terms  in  receipt, Ind.  207 

receivable  to  explain  term  "cold  storage''  in  warehouse  receipt,  N .  Y .  599 

not  receivable  to  vary  bill  of  lading  so  far  as  it  is  a  contract, la.  225 

admissible  so  far  as  bill  of  lading  is  a  receipt, Ind.  209,  Me.  314 

to  what  extent  receivable  to  vary  bill  of  lading, Mo.  497 

admissible  to  show  that  goods,  represented  by  bill  of  lading,  tvere 

never  received, xV.  C.  612 

admissible  to  vary  terms  of  bill  of  lading, Ore.  686 


INDEX.  903 

References  to  laws  are  printed  in  roman.     Those  to  ilrcisiom  are  in  ilnlict,. 

PAROL  EVIDENCE—Continued.  ,       . 

rA<iK 

ivhen  not  receivable  to  show  time  of  dclirrri/ (;„     \  ■>■> 

when  receivable  as  to  oral  agreement, |,^    .)•>  j 

PARTIAL  DELIVERY.     See  uhn  DELIVERY. 

Ken  on  balance  of  goods  remaining .Mass.  313 

must  be  indorsed  on  back  of  warehouse  receipt 

Cal.  3,S,  -13,  OUlii.  (1(11,  S.  I):ik.  737 
PARTNERSHIP, 

delivery  to  a  partner  constitutes  delivery  to  firm, [la.       9 

PENALTIES, 

for  violation  of  warehouse  act, 

Ariz.  23,  Cal.  39,  Colo.  68,111.  138,  Ind.  19G,  la.  214,  Kv.  257, 
La.  294,  Mich.  356,  Minn.  414,  Mo.  458,  471,  N.  J.  545,  X.  d! 
617,  Ohio,  633,  Ore.  678,  Pa.  690,  R.  I.  710,  S.  Dak.  739,  Tenn' 

752,  Wash.  799 

for  violation  of  ivarehouse  act,  warehouseman  held  liable, la.  218 

for  violations  of  certain  provisions  of  warehouse  act 

Okla.  667,  Va.  780,  791,  Wyo.  833 
for  failing  to  make  any  report  required  by  warehouse  act, ....  Neb.  527 
for  charging  higher  rate  for  storage  of  cotton  than  that  allowed  by 

law, S.  C.  725 

for  delivery  of  goods  when  negotial:)le  bills  of  lading  or  receipts 

outstanding, S.  Dak.  748 

for  transaction  of  warehouse  business  without  a  license, 

111.  130,  Kan.  240,  Ky.  200,  La.  291,  Mo.  455,  462,  Neb.  511, 

Okla.  658,  S.   Dak.  733 

for  issuance  of  fraudulent  bill  of  lading, 

Neb.  532,  N.  Y.  559,  N.  D.  621,  Ohio,  635,  S.  Dak.  746 

for  issuance  of  fraudulent  warehouse  receipts, 

Colo.  67,  111.  145,  157,  Ind.  193,  la.  218,  Me.  312,  Mass.  335, 
Mich.  369,  Minn.  380,  Mo.  466,  Mont.  501,  Neb.  508,  524,  533, 
N.  Y.  559,   N.  D.  621,  Ohio,  636,  Okla.  662,  Ore.  681,  S.  Dak. 

746,  Va.  780,  Wa.s]i.  803,  Wis.  820 
for  unauthorized  sale  of  property  by  warehou.senien  or  carriers, 

X.  Y.  560 

for  forgery  of  warehouseman's  signature, Mass.  335 

for  fraud  committed  through  warehouse  receipts, Xeb.  5.'J-1 

for  fraudulent  sale  or  pledge  of  warehouse  receipts, Va.  792 

for  improper  issuance  of  duplicate  receipts  or  bills  of  lading,  Md.  317 

for  destruction  or  alteration  of  warehouse  receipt Wis.  823 

for  issuing  unmarked  duplicate  warehouse  receipts, Mont.  502 

if  receipt  holder  fail  to  comply  with  terms  thereof, Md.  319 

for  failing  to  have  notice  of  advances  appear  on  warehouse  receipt, 

Minn.  380 
for  fraud  on  part  of  one  holding  advances  against  projjerty  rejjre- 

sented  by  warehouse  receipts, Md.  319 

for  disposing  of  receipt  without  disclosing  attachment, Me.  309 


904  LndeX. 

References  to  laws  are  printed  in  rornan.     Those  to  decisions  are  in  italics. 

FEN  ALTIES— Continued.  page 

none  provided  for  failure  to  place  brands  on  warehouse  receipts,  III.  145 

for  the  false  branding  of  tobacco, Va.  782 

against  tobacco  inspectors  taking  illegal  fees, Ohio    639 

for  division  of  fees  by  samplers  of  tobacco, Va.  787 

imposed  upon  samplers  for  dealing  in  tobacco, Va.  785 

for  neglect  of  duty  bj^  tobacco  inspectors, Ohio,  639 

for  speculation  by  tobacco  inspectors, Ohio,  638 

against  appropriation  of  samples  by  tobacco  inspectors,.  .  .Ohio,  641 
for  failure  of  sampler  to  keep  record  of  reprised   packages   ot  to- 
bacco,   Va.  790 

for  violation  of  provisions  respecting  weighing  of  leaf  tobacco,  Va.  793 

for  violation  of  certain  laws  relating  to  tobacco, Va.  789 

for  delivering  tobacco  without  order  of  owner, Va.  784 

for  failure  of  proprietor  of  tobacco  warehouse  to  give  bond,  Ohio,  643 
for  violation  of  laws  pertaining  to  auction  sales  of  tobacco,.  .  .Ky.  270 

for  altering  marks  of  tobacco  inspectors, Ohio,  039 

for  placing  in  packages  other  substances  than  tobacco, ....  Ohio,  642 

for  failure  of  tobacco  inspector  to  attend, Mo.  481 

for  unauthorized  inspection  of  tobacco, Mo.  484 

for  receiving  tobacco  without  owner's  consent, Va.  790 

for  sending  tobacco  to  wrong  warehouse, Va.  790 

for  illegal  receipts  by  samplers  of  tobacco, Va.  784 

for  nesting  hogsheads   of   tobacco, Ky.   2G9,   Va.   789 

for  use  of  false  brands  on  tobacco, Va.  789 

for  not  delivering  tobacco  on  demand, Va.  785 

for  neglect  of  duty  of  grain  inspector, ]\Iinn.  396 

for  bribery  of  those  in  grain  inspection  service, Kan.   237 

upon  carrier  for  failure  to  deliver  grain, III.   149 

for  permitting  grain  to  be  delivered  when  receipts  not  cancelled.  111.   146 

for  removal  of  grain  when  receipt  outstanding, Ind.   193 

for  attempting  to  influence  grain  inspectors, 111.   143 

for  neglect  of  inspector  or  weigher  of  grain, Ky.  266 

for  violation  of  grain  inspection  law  b}^  inspectors, Kan.  236 

for  delivering  grain  without  authority  of  owner  or  for  mixing  dif- 
ferent grades, Minn.  383 

for  coloring  grain,  or  sale  thereof, Minn.  420 

for  acting  as  inspector  of  grain  v.'ithout  authority, 'Mum.  396 

for  unlawful  breaking  of  seals, Minn.  405 

for  fraudulent  weighing  of  grain, Mo.  480 

for  assuming  to  act  as  grain  inspector, Mo.  473 

for  malfeasance  of  inspectors  of  grain, Mo.  473 

for  carrier  refusing  to  receive  grain,  etc., Mo.  488 

for  misconduct  of  grain  inspectors, Neb.  522 

against  bogus  grain  inspectors, Neb.  522 

for  neglect  or  fraudulent  conduct  of  grain  inspectors, Okla.  669 

for  failure  to  deliver  grain  on  presentation  of  receipt Ky.  262 

for  keeping  inflammable  or  explosive  fluids, R.  I.  708 


INDEX.  00;') 

Referenc  s  to  laws  are  printed  in  ruman.     Those  to  decisions  arc  in  italics. 

PE^ATIES~C  onlimied.  ,.^fjK 

which  town  councils  may  inflict  for  violation  of  law  rci,'anliii;; 

stora,!i;e  of  kerosene, [{     j    7  j  i 

for  meddling  with  oflicial  brands  on  kerosene  cjusks, \{.  I    710 

for  putting  uninspected  kerosene  in  branded  casks, ]i   I    710 

for  removal  of  goods  without  consent  of  receipt  holder HI.   l.")S 

for  unlawful  disposition  of  goods,  bonded  warehouses, (,!a.   100 

for  unlawful  sale  of  stored  property 

Mass.  334,  Mont.  .502,  X.  D.  (V22,  S.  Dak.  717 
those  provided  in  warehouse  act  not  exclusive  of  civil  remedies, 

Md'.  3 IS 

for  fraud  on  part  of  consignee, Xeb.  532 

for  fraudulent  appropriation  of  merchandise  Ijy  factor  or  agent, 

Xob.  531 

for   breaking   into   warehouse, 

Ind.   197,    198,   Mich.   3G7,   Oliio,   Cir,,   Wis.  817 

for  embezzlement  by  warehousemen, 

Fla.  93,  111.  l.-jS,  Mich.  370,  Wis.  SIS 

for  larceny  by  warehousemen, S.  Dak.  73(),  Wis.  817 

for  failure  of  commander  of  vessel   to  keep  record   of  tobacco 

shipped, Va.  790 

for  crime  of  arson, ( )re.  BSO 

for  burning  warehouse, Mich.  3GG,   W.  Va.  SOS,  Wis.  81 G 

for  burning  property  to  injure  insurer, Wis.  817 

against  forging  tobacco  inspector's  receipts, Ohio,  GI2 

for  being  party  to  unlawful  sale  for  storage  charges, .\.  C  G05 

for  violation  of  laws  pertaining  to  tobacco, X.  C.  608 

for  excessive  storage  charges  or  discrimination  by  railroads,.  .S.  C.  723 
imposed   upon   railway  companies  for   failure  to   constnict  side 

tracks, S.  Dak.  741 

for  improper  issuance  of  receipt  of  Ijontled  warehouse Ky.  271 

for  failure  to  make  report  to  railroad  and  warehouse  connnission, 

111.     154 

for  cheating  and  swindling  by  warehousemen, Ind.  197 

for  burglary  of  warehouse, Ohio,  644 

for  using  weights  and  measures  not  proved, Minn.  422 

for  neglect  to  procure  standard  weights  and  measures,.  .  .  .Minn.  423 

for  interfering  with  state  weighmaster  or  assistants, 

111.   157,   Minn.   394,   Xeb.  531 

for  using  false  weights Ky.  2(J7 

for  failure  to  deliver  property  upon  return  of  warehouse  receipt, 

Xeb.  514 

st-dute  imposing  them  upon  warehoiisenwn  constitulionnl, Ore.  6SG 

failure  to  refer  to,  in  title  of  warehouse  act  does  not  render  same  un- 
constitutional,   ^rc.  6S6 

for  refusing  to  obey  subpcrna  of  board  of  transportation Xeb.  527 

for  refusal  to  obey  subpoena  of  board  of  commissioners Okla.  673 

for  failure  to  obey  subpconi  of  board  of  railroad  and  w:irehouse 
commissioners, I"-  l"''.  ^'^    4<7 


906  INDEX. 

References  to  laws  are  printed  in  ronian.     Those  to  decisions  are  in  italics. 

PERISHABLE  PROPERTY,  page 

warehovisemen's  duty  in  case  of  storage  of, N.  C.  605 

warehousemen  have  Hen  on, Minn.  378 

when  and  how  may  be  sold, 

Cal.  36,  Colo.  65,  la.  217,  Kan.  227,  Mass.  337,  Mich.   358, 

Minn.  377,  N.  D.  619,  S.  C.  720,  Wash.  806,  Wis.  811 

sale  of,  for  freight  charges, Ala.  4,   Ohio,  633 

notice  required  before  sale  of, Wash.  806,  Wis.  811 

owner  liable  for  charges  if  sale  of  produces  insufficient  fund,  S.  C.  721 

disposition  of,  when  sale  cannot  be  effected, S.  C.  721 

sale  of,  bonded  warehouses, Ga.  100 

live  stock  is, Ohio,  633 

PERMIT, 

county   auditor  cannot  issue   ivarehouse   permit   to   mamtfacturing 
corporation, Ind.  201 

PETITION, 

averments  in,  for  warehouse  site  on  railway, S.  Dak.  742 

PETROLEUM  OIL, 

how  to  be  stored, R.I.  709 

not  to  remain  in  open  air  or  on  sidewalk, R.  I.  710 

warehouse  act  extends  to  petroleum  stored  in  barrels, Pa.  690 

PLACE  OF  STORAGE, 

jury  to  decide  whether  it  was  safe, Mass.  348 

PLEADINGS, 

necessary  averments  as  to  furnishing  storage, III.  163 

tvhat  must  be  shown  to  maintain  action  against  warehouseman,  Mass.  345 

declaration  must  allege  warehouseman's  refusal  to  deliver, Ala.  19 

there  must  he  no  variance  as  to  ground  of  refusal  to  deliver, Ore.  683 

when  declaration  alleges  refusal  to  deliver  and  answer  sets  up  new 

matter,  burden  on  defendant, 3/o,ss.  346 

when  plea  of  statute  of  limitations  not  inconsistent, S.C.  727 

what  complaint  should  contain  in  an  action  for  conversion, Ind.  202 

in  an  action  to  acquire  a  warehouse  site  on  railroad, S.  Dak.  743 

allegation  of  ownership  of  receipts  equivalent  to  allegations  of  owner- 
ship of  jyroperty, Cal.  51 

when  declaration  must  allege  indorsement  of  warehouse  receipt  to 

plaintiff, 1  /«•  19 

complaint  must  aver  title  in  plaintiffs'  vendor, Ala.  19 

in  trover  complaint  must  aver  oivnership, Ala.  13 

no  departure  by  showing  original  bailment  in  action  of  detinue,  D.  of  C.  89 
complaint  may  contain  counts  charging  defendants  both   as  ware- 
housemen and  carriers, Ala.  11 

insufficient  declaration  where  goods  destroyed  hi/  fire, Pa.  7C0 

what  indictment  under  warehouse  act  must  contain, Ky.  257 


INDEX.  <JU7 

References  to  laws  arc  printed  in  roman.     Those  to  derisions  arc  in  italics. 

PLEDGE.     See  also  PLEDGEE.  pack 

defined, If.  ]„.  SIO 

requisites  of, Win.  Sis 

the  elements  of  a  bailment  in  case  of IT.  la.  SIO 

bailee  has  no  right  to  pledge  bailed  lyroperli/, Kan.  'IM 

by  bailee,  is  a     mversion, (,'olo.     iV.) 

pledgor  no  right  to  possession  unless  he  keeps  his  undertaking,.  .Mo.    191 

substitution  of  other  goods,  lien  lost H'i.«i.  S.'{1 

substitution  of  other  proper!]/,  when  pledge  not  affected .Minn.  437 

pledgee  not  deprived  of  his  rights  by  fraudulent  removal  of  the  goodx 

by    pledgor, l/a.     M 

may  be  made  by  warehouse  receipts, 

Colo.   70,   Ga.    112,    lis,   iMich.   373.   Mo.   400 

may  be  make  by  assiijnment  of  warehouse  receipt, 

La.   296,   Mo.   45S,   Va.   778 

may  he  made  by  cotton  notes, 3/o.  490 

of  warehouse  receipt  representing  mixed  grain, Minn.  430 

warehouse  receipt  .sufficient  to  give  pledgee  posses.non, Minn.  430 

of  ivarehou.se  receipt  to  secure  usurious  loan, Ga.   1 19 

by  a  fictitious  receipt,  ivarehouseman  protected, Pa.  69S 

receipts  of  private  warehouseman  against  his  own  goods,  effect,  Ind.  204 

may  be  made  by  warehouseman  by  his  own  receipts, 

Ala.  15,  Mich.  373,  Minn.  441 
affidavit  to  be  made  where  warehouse  receipt  used  as  collateral.  La.  2S7 

by  pledgee  of  warehouse  receipt,  original  pledgor  protected, 

Mass.  34S,   Wa.sh.  S07 

made  by  pledgee,  instruction  to  jury, D.  of  C.     90 

factor  cannot  pledge  principal's  property  for  his  own  debts La.  300 

factors  may  pledge  goods  intrusted  with  them  under  the  factors'  act, 

X.   Y.  5S0,   Wis.  S2S 
factors  may  pledge  goods  entrusted  with  tlicm,  to  tite  extent  of  thfir 

interest, La.   301 ,    Tenn.  ITA 

made  by  factor,  damages A'l/.  276 

factor  may  pledge  property  entrusted  to  him X.  Y.  558 

by  factor,  when  invalid, Ga.  100 

by  factor  if  unauthorized,  owner  protected, La.  2s9 

by  factor  or  agent,  owner's  rights, Mc.  308 

rights  of  owner  where  factor  pledges, N.  Y.  558 

pledgee  may  maintain  action  in  riis  oivn  name N.  D:ik.  749 

by  parol  and  temporarily  without  possession,  when  vnli<l,.  .  .  .Tcnn.  7.')1 

right  to  sell,  notice, '"•   ' ' ' 

rights  of  pledges  in  case  of  default, La.  2.SS 

right  of  pledgee  to  .sell  implied  tvhere  not  exfyressly  given Tex.  768 

pledgee  need  not  wait  for  most  favorable  market,  to  sell, Tex.  768 

unauthorised  .sale  by  pledgee  is  conversion A  .  1  .  580 

not  defeated  hy  delivery  of  goods  in  settlement  of  antecedent  debt,  Pa.  703 

examination  of  pledge  by  experts  in  case  of  default La.  2.S8 

may  be  made  by  bill  of  lading, ^y-  277 


908  INDEX. 

References  to  laws  are  printed  in  roman.     Tliose  to  decisions  are  in  italics. 

PLEDGE — Continued.  page 

of  stolen  goods  not  valid, Wash.  807 

facts  constituting  ineffectual  notice  to  warehou.seman, Pa.  698 

PLEDGEE.     See  also  PLEDGE. 

may  maintain  trover, Wis.  831 

rights  of,  where  bill  of  lading  held  as  collateral, W.  Va.  810 

pledge  of  warehouse  receipt  by,  owner  protected, Mass.  348 

if  he  takes  a  receipt  without  indorsement  equities  are  let  in, ....  Ind    208 

of  receipt  fraudulently  issued,  protected, Kan.  230 

lien  of,  superior  to  warehouseman's,  when, Ky.  276 

PLEDGOR.  See  PLEDGE;  PLEDGEE. 

POLICE, 

protection  of  grain,  when  to  be  furnished  by  warehousemen,  Minn.  405 

POLICE  POWER.     See  also  CONSTITUTIONAL  LAW. 

act  prescribing  storage  charges  held  an  exercise  of, 

///.  182,  Mo.  49J,  N.  Y.  601,  N.  D.  626 

inspection  of  grain  a  proper  exercise  of, III.  164 

state  cannot  erect  a  grain  elevator  zinder  authority  of, Minn.  446 

a  stockyard  companxj  not  subject  to  legislative  control, N.J.  549 

POOLING, 

agreements  between  country  warehouse:", Minn.  413 

contracts  of,  between  warehousemen  prohibited, S.  Dak.  731 

POSSESSION, 

bailee  has  right  to,  of  bailed  property, Ga.  101 

warehousemen  must  have  posse.ssio7i  of  /  roperty  ivhen  receipt  issued. 

Pa.  702 
bailor  must  be  in  lawful  possession  or  bailee's  lien  does  not  attach, 

Wyo.  837 

essential  to  continuance  of  lien, III.  166 

lien  lost  by  surrender  of, Miss.  450 

if  regained  lien  not  revived, III.  166 

if  jiossession  of  goods  be  regained  lien  attaches  for  former  .storage, 

Mich    372,  N.  Y.  576 

executory  contract  of  bailment  does  not  give  right  of, Wis.  825 

ivhat  constitutes  taking  possession  by  transferee  of  receipt,  a  question 

of  fact, N  Y.  592 

if  lost  by  legal  process  warehouseman  not  liable, Va.  779 

POSTAL  CARD, 

revenue  stamp  not  required  on, Pa.  702 

POSTING, 

of  copy  of  warehouse  act  required, ...  .111.  145,  Neb.  524,  Okla.   666 
of  stored  grain,  when, Neb.  514 


INDEX.  9^9 

Refere^u^e.  to  laws  are  printed  u.  ro,nan.     Those  to  decisions  are  in  italic.. 
POWDER, 

storing  of,  constitutes  negligence  ,.  ,   ''^^^' 

' C  olo.     70 

POWERS, 

creditors  bound  to  knorv  poivers  of  a  corporation, /,„y    .,^^^ 

PRE-EXISTING  DEBT, 

token  a  good  consideration  for  transfer  of  warehouse  rcre.pt, .  . .  .(■«/.     .Vj 

PREFERENCE, 

when  assignment  of  warehouse  receipt  is  not, Cal      GO 

PRESUMPTION, 

none  as  to  otcjiership  from  possession  by  factors,  brokers  etc  I «    298 

that  bonded  goods  are  in  charge  of  government  officials  '     i/^i^s'  342 

of  knowledge  of  the  contents  of  a  bill  of  lading  from  acceptance,  Tenn    759 

from  failure  lo  deliver  on  part  of  bailee, y^.,,'  j^q 

of  negligence  if  a  warehouse  collapse, "  y    y    ^o 

PRESUMPTIVE  EVIDENCE.     See  EVIDENCE. 

PRIMA  FACIE  CASE, 

what  must  be  shown, »-   , - 

against  warehouseman,  how  made,....Ga.  105,  M iss.  ArA,  N.   Y.  570 
PRINCIPAL  AND  AGENT, 

when  relation  of,  must  exist  to  impute  nefrlijreuce, Ga.  102 

effect  of  death  of  principal, '  Ga    lOS 

PRIVATE  PERSONS, 

may  erect  elevators  if  carriers  refuse  to  handle  grain  at  le-al  rate, 

Minn    3S3 
PRIVA  TE  WAREHOUSES, 

storage  of  bonded  goods  in,  presumption  as  to  officUd  control,.  ..]/a.s.s.  312 
PRIVATE  WAREHOUSEMEN, 

how  receipts  of  must  be  marked, La.  294,  Tox.  764 

negotiability  of  their  receipts, /„j    oflS 

receipts   of  quasi-negotiable, ///    174 

issuance  of  receipts  by,  against  own  jrroperly  to  secure  own  debt,  Ind.  207 
warehouse  act  not  applicable  to, Tex.  764 

PRIVITY, 

must  exist  to  impute  negligence, Ga.  102 

PROBATE  COURT, 

appointment  of  tobacco  inspectors  by, Ohio,  036 

PRODUCERS, 

not  bound  by  warehouse  act, S.  Dak.  740 

PROOF  OF  LOSS, 

failure  to  make,  within  time  stated  V/i  insurance  policy Ky.  279 


^10  INDEX. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

PROPERTY.     See  also  UNCLAIMED  PROPERTY.  page 

limit  to  value  of,  owned  by  warehouse  companies, Mich.  361 

PROPRIETORSHIP, 

change  in  proprietorship  of  ivarehouse,  effect, N.  Y.  569 

what  constitutes  prima  facie  case  against  new  proprietor, N.  Y.  570 

holding  warehouse  in  official  capacity  no  defense  where  goods  injured, 

N.Y.  569 

PROSECUTING  ATTORNEY, 

duty  to  criminally  prosecute  warehousemen,  when, 111.   144 

PROSECUTIONS, 

under  warehouse  act,  how  brought, Okla.  673 

PROXIMATE  CAUSE, 

failure  to  sell  ivithin  a  reasonable  time  is  not, Ala.     14 

failure  to  gin  cotton  at  time  agreed, Ala.     8 

warehouseman's  statement  that  he  did  not  have  the  goods,  subsequent 

loss  by  fire, Tenn.  755 

facts  stated  which  did  not  constitute, iV.  C.  610 

question  for  jury, Colo.     70 

PRUDENCE, 

purchaser  of  warehouse  receipt  must  exercise  ordinary   jyrudeyice, 

Minn.  442 
PUBLIC, 

duty  of  warehousemen  to, Xy.  274 

warehousemen  must  serve  the  entire  public, Ky.  274 

PUBLICATION. 

of  the  rules  and  regulations  of  the  railroad  commissioners, 

N.  D.  613,  S.  Dak.  731 

of  rates  of  storage,  to  be  made  each  year, 

111.   138,  Mo.  467,  Neb.  518,  Okla.  663,  S.  Dak.  738 
of  rules  governing  inspection,  weighing,  grading,  etc.,  of  grain  to 

be  published, Minn.  399 

of  notices  when  grain  out  of  condition,  Kan.  246,  Mo.  469,  Neb.  519 
of  notice  of  warehousemen's  licenses,  qualifications  of,  etc.,  Mass.  334 

must  be  made  of  notice  of  sale  for  storage  charges, 

Cal.  40,  N.  Y.  554,  N.  C.  604,  Wyo.  834 
of  notice  of  sale  of  unclaimed  property, Neb.  506,  Wis.  811 

PUBLIC  BUSINESS, 

the  business  of  warehousing  is, 

III.  161,  182,  Mo.  499,  N.  Y.  601,  A^.  Dak.  626 
PUBLIC  ELEVATORS, 

defined, Ky    259 

PUBLIC  GRANARIES, 

defined, Ky.  259 


INDEX. 


[•11 


References  to  lau,s  are  prM  in  ron.an.     TUse  to  decisions  are  in  italic. 

PUBLIC  POLICY, 

contracts  of  corporations  against,  void  ,    ,     „., 

PUBLIC   USE, 

when  use  of  ground  for  warehouse  a  pul,lic  use, ..  U       I ' »'  I 

the  taking  of  land  for  a  warehouse  site  is  not, .'. V    )'    7m 

PUBLIC  WAREHOUSES, 

defined  by  statute, 

Colo.  63,  Kan.  239,  Ky.  259,' X.' D.' inlj;  okla.' (m(;^s' 'nak    7-}l 
subject  to  legislative  control, ^jj^ii  '    ,' 

any  person  may  establi.sii I,  ""''     J, 

,  ^  ,     ,  '         Conn.     74 

when  must  be  kept  open  for  business, Mi„„.  .,,<)   ()k|a    mv, 

to  be  in.spected, c'   i »  i     -  , , 

„    ...         .  „^  ^1.   Dak.   /.}4 

m  all  cities  of  over  fifty  thousand  inliabitants, m„    .,.-  j 

erection  of  near  railways,  application  for  permission,.  ....  .Minn    4lV, 

manner  of  selecting  sites  for,  on  lines  of  railroads, S.  Dak    741 

elevators  and  storehouses  declared  to  be, ' .  .Xeb    500 

aU  warehouses  in  Duluth,  Minneapolis  'and  St.  Paul  wliere  grain 

is  mixed  declared  to  be, ^jjl^i^    ^^, 

proprietors  must  procure  license, Xeb    ')]() 

owners  may  e.xamine  stored  property  and  warehouse  books,  Xd/  ol() 

gram  need  not  be  placed  in, ^Uj^^    3^^ 

must  display  sign, ......'  .Conn.     74 

PUBLIC  WAREHOUSEMEX.     See  also  WAItEHOUSEMEX. 

defined  by  statute.  Me.  310,  Mo.  4G0,  X.  D.  613,  S.  C.  71o,  Tex.  761 

judicial   definition  of, '      in    .  ^ , 

how  corporations  authorized  to  do  a  warehouse  business  may  Ije- 

^«™«' • X.    C.  602 

<i"*i^s   of, jli„„    3sg^    ^i^    ^g2 

must  give  bond, 

Mass.  332,  Mo.  455,  461,  Xeb.  511,  X.  D.  615,  Okla.  6.57^  S.  C. 

715,  S.  Dak.  732,  Tex.  761 

bond  of,  amount,  condition  and  liability  upon, X.  C.  602 

must  procure  license  and  file  bond, 

Kan.  239,  Minn.  384,  407,  Ukhi.  657,  S.  Dak.  731 

doing  business  without  a  license,  penalty, Minn.  3S5,  Mo.  462 

to  procure  certificate  from  county  court, Tex.  761 

may  be  licensed  by  the  governor, Mivw.  332 

license  of,  how  obtained,  to  be  conspicuoasly  posted, X.  D.  611 

statements  and  reports  to  be  made  by, Okla.  663 

must  keep  books  of  entry, S.  Car.  7!,S 

books,  records  and  papers  of,  subject  to  inspection, 

Ma.ss.   334,   Mo.   476,    X.   C.   603,    Okla.   672 

statements  and  reports  required  of, Minn.  3S0 

required  to  make  weekly  statements Xch.  509 

weekly  statements  to  board  of  railroad  and  w.irohou.se  conunis- 
sioners, ,,,,.... , Mo.  467 


912  INDEX. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

PUBLIC  WAREHOUSEMEN— Con/inwed.  page 

required  to  publish  rates  of  storage  each  year, Mo.  467 

may  be  required  to  insure  stored  property, 

Mass.  333,  X.  C.  603,  S.  C.  716 
not  required  to  receive  grain  when  they  have  insufficient  room. 

Mo.    464,    Okla.  659 

must  receive  for  storage  grain  offered, Kan.  241 

duty  as  to  preservation  of  grain Okla.  664 

prohibited  from  mLxing  different  grades  of  grain.  Mo.  463,  Neb.  520 

not  to  mix  grain  without  owner's  permission, Minn.  386 

may  run  grain  through  machinery,  when, Mo.  463 

shall  not  receive  grain  until  it  is  inspected  and  graded, Mo.  464 

not  permitted  to  deny  the  storage, S.  Dak.  736 

not  responsible  for  loss  by  fire  if  reasonable  care  be  used, .  .  .  Okla.  664 

to  furnish  scales,  when, Mo.  479 

warehouse  receipts  of,  what  to  contain, N.  C.  603 

may  issue  warehouse  receipt  for  own  goods, Tex.  764 

cannot  issue  receipt  against  own  property  to  secure  own  debt, .  .  .Ind.  207 

notice  of  sale  of  goods  for  charges, Mass.  338 

not  permitted  to  enter  into  combination  with  railroads, 

Mo.   464,    Okla.   660 

not  to  discriminate  between  persons, Minn.  386,  Neb.  511 

determination  of  title  of  goods  stored  with, Mass.  339 

duty  of,  when  in  possession  of  perishable  or  dangerous  property, 

N.    C.  605 
duty  of,  when  in  possession  of  worthless  property, N.  C.  606 

PUNISHMENT.     See  PENALTIES. 

PURCHASERS, 

when  rights  of  bona  fide  purchasers  not  affected  by  liens, Wyo.  836 

PURCHASE  PRICE, 

luarehouse  receipts  must  contain  notice  oj  its  non-payment, Ky.  281 

notice  of  non-payment  on  warehouse  receipt,  effect, Minn.  439 

QUI  TAM  ACTIONS, 

against    warehousemen, HI.   155 

RAILROAD  COMPANIES.     See  also  CARRIERS. 

construction  of  warehouses  on  the  right  of  way  of, N.  D.  617 

side  tracks  for  warehouses  to  be  provided  by, N.  D.  618 

RAILROAD    COMMISSIONERS, 

authority  conferred  upon, g.  Dak.  731 

duties  and  powers  of, S.  Dak.  731 

rules  made  by,  to  be  printed  and  published, S.  Dak.  731 

to  fix  storage  charges  on  freight, S.  C.  722 

wareliousemen  to  make  reports  to, S.  Dak.  734 

to  cause  warehouses  to  be  inspected, S.  Dak.  734 

may  subpoena  witnesses, ,.,,,,,,,,,, S.   Dak.  734 


INDKX.  (\\',\ 

Reference .  to  laws  arc  printed  in  rumun.     Those  lo  (leri,siotut  are  in  ilaUcH 

RAILROAD  COMMISSIONERS— Con^inwed.  ,.a,;k 

moneys  collected  by,  to  be  paid  into  state  trea.sury, S.  Dak.  T.iTt 

attorney  general  to  be  the  attorney  for, S    Dak.  7;iS 

to  test  scales  in  grain  warehouses, S.  Duk    7'.iS) 

to  furnish  copy  of  warehouse  act  to  warehouscnien S   Dak.  7:J9 

to  provide  standard  weights  and  measures, s.  Dak.  7:{«j 

to  select  warehouse  sites,  when, .S   ]),^^^    y.j  | 

when  to  fix  location  of  warehouses, S.  Dak.  711 

decision  of,  regarding  warehouse  sites  final,  when S.  Dak.  711 

RAILROAD  AND  WAREHOUSE  COMMISSION, 

appointment  and  term  of  oflTice  of  coniinissioners, HI.   l.V) 

jurisdiction  of, HI    i;^vj 

all  grain  elevators  and  warehouses  under  control  of, Mum.    KMj 

to  have  general  supervision  of  grain  interests, Minn.  .'1'.)*) 

qualifications  of  memliers,  oath,  bond, Hi.   i,')i 

board  of  railroad  commissioners  to  be  known  as, Mo.    \')'j 

seal    of, 111.   LW 

records    of, III.  1  .')G 

annual  reports  to  governor, HI .   1  ,')2 

appointment  of  arbitration  committee  to  be  made  by, Mo.  47,5 

secretary  of,  to  be  registrar, Minn.  390 

to  fix  salaries  of  members  of  board  of  appeals Minn.  4'2S 

to  make  rules  governing  inspectors  of  grain Mo.  473 

to  establish  grades  of  grain, 111.   147,   Mo.  475 

to  visit  and  examine  warehouses, Mo.  476 

may  require  statements  of  warehousemen, .  .  111.  lol,  Minn.  3X0,  Mo.  470 

to  make  rules  governing  the  inspection  of  grain, Minn.  395 

to  receive  complaints  of  unfairness  in  inspection  of  grain,.  .  .Minn.  412 

may  examine  books  and  witnesses, 111.  153 

to  make  rule  for  county  warehouses, Minn.  40.8 

to  appoint  chief  inspector  of  grain, Minn.  304 

to  fix  compensation  to  be  paid  to  inspectors  of  grain,  111.  140,  Mo.  473 

its  right  to  inspect  grain  a  legal  one, ///.   ir>4 

to  adopt  rules  regulating  weighing  of  grain, 111.  157,  Minn.  304 

state  weighmaster  to  be  appointed  by, Miini.  303 

to  fix  compensation  of  weighmasters, 111.  15G,   Mo.  4S0 

property,  books,  records,  etc.,  of  warehousemen  subject  to  exam- 
ination  by, Mo.  470 

inaction  of,  not  a  construction  of  larv  binding  on  the  courts ///.   154 

may  designate  points  to  be  terminal  points Minn.  420 

may  pronounce  warehouses  fireproof,  effect, Miim.  4.'10 

appeals  to,  from  inspector  of  grain, Minn    307 

may  cancel  licenses, IH-  '•''•^ 

action  of,  reveiwable  by  the  courts,  when  and  how ///•   153 

acts  of,  not  fudicial, ^"-   "'-^ 

duty  to  report  violations  of  law  to  attorney  general, ///    1  •'»  • 

58 


914  INDEX. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

RAILROAD  AND   WAREHOUSE  COMMISSION— Con/zMwet/.  page 

shall  prosecute  those  violating:  law, 111.   152 

attorney  general  to  be  attorney  for, Minn.  399 

RAILWAYS, 

warehouses  located  near  tracks  of,  permission  to  build,.  .  .  .Minn.  416 

RAILWAY  COMPANIES.     See  CARRIERS. 

RAIN, 

damage  as  result  of  unusual  rain,  reasonable  care, Md.  328 

RATES, 

maximum,  for  selling  leaf  tobacco, >S.  C.  721 

maximum  rate  allowed  by  law  for  handling  grain  in  elevators, 

Minn.  383 

RATES  OF  STORAGE.     See  also  STORAGE  CHARGES. 

prescribed  by  statute, 111.  138 

to  be  published  by  public  warehousemen  each  year, 

111.  138,  Kan.  245,  263,  Mo.  467,  S.  Dak.  738 

RATIFICATION, 

by  warehousemen  of  illegal  sale, Ark.  30,  Ky.  275 

REAL  ESTATE, 

warehouse  corporations  may  purchase  and  lease, Ohio,  634 

RE.\L  OWNER.     See  OWNER. 

REASONABLE  CARE.    See  also  ORDINARY  CARE. 

correct  instruction  to  jury  as  to, Md.  327     , 

lack  of  where  damage  due  to  flood, Md.  328 

RE-ASSORTMENT, 

of  rejected  tobacco,  when  allowed, Ohio,  640 

RECEIPTS.     See  also  WAREHOUSE  RECEIPTS. 

of  private  warehouseman  against  own  goods,  creditor  protected,.  .Ind.  204 

given  by  drayman,  recitals  in, III.  165 

issued  by  one  not  warehouseman  and  goods  not  stored,  void, III.  180 

statute  governing  the  issuance  of  various  kinds  of  receipts  used  as 

collateral,  etc., La.  286 

of  all  kinds  and  bills  of  lading,  etc.,  declared  negotiable, Ore.  677 

form  of,  to  b    given  by  samplers  or  tobacco, Va.  782 

to  be  given  by  newly  appointed  samplers  of  tobacco,  to  prede- 
cessors,   ^^-   '^Sl 

penalty  for  issuance  of  illegal  receipts  by  samplers  of  tobacco,  Va.  784 
issued  by  debtor,  not  a  warehouseman,  to  secure  debt,  not  a  warehouse 
receipt, Ind.  208 


INDEX.  9J5 

References  to  laws  arc  priyitcd  in  roman.     Those  to  dccisiom  arc  in  ilalirH. 
RECEIPT  OF  GOODS, 

in  action  on  bill  of  lading  cmdcnce  admissible  U,  show  goods  ntver  ^''' 

received, ,,  ,    .,„. 

,    .,    ,    ,.,.,.  'id.  .iM 

bailee  s  liability  commences  upon, l-      .,-., 

RECLAMATION, 

of  property  after  beins  sold  for  frei-ht  ch.ir-os ()hi„,  n.TJ 

claims  for,  when  to  bo  made, j^   '  .,,jjj 

RECORD, 

of  all  warehouse  receipts  to  he  kep  , I-i    'M'' 

of  railroad  and  warehouse  commission, HI    ^r^Q 

of  all  orii^^inal  and  substituted  seals  to  be  kept  ijy  inspectors,  Minn.  -Dl 

of  proceeds  of  sale  for  storage  charges,  how  to  be  kept , 

-Mich.  ;r),S,  R.  I.  707 

to  be  kept  of  unclaimed  property  sold Vt    774 

of  all  property  received  by  warehousemen  to  be  kept, Mich.  :?51 

RECORDER  OF  DEEDS, 

declaration  must  be  filed  with, j.j    oj  | 

RE-DELIVERY.     See  DELIVERY. 
REDEMPTION, 

before  sale  for  storage  charges,  how  made, X.  V.  .5.') 4 

REGISTER, 

to  be  kept  of  all  freight  received, Oliio,  630 

to  be  kept  bj'^  warehousemen, Ky    2.57 

"REGISTERED  FOR  CANCELLATION." 

warehouse  receipts  must  be,  when, HI.   liQ 

REGISTER  OF  DEEDS, 

declaration  must  be  filed  with,  before  warehouse  receipts  may  l)e 
issued,   \Vi.s.  S21 

REGISTRAR.     See  also  WAREHOUSE  REGISTRAR. 

appointment,  removal,  qualifications  and  compensation  of, .  .  Ky.  2G2 

daily  reports  to  be  made  to,  by  public  warehousemen Minn.  35)0 

secretary  of  railroad  and  warehouse  commission  to  be,.  .  .  .Minn.  .390 
daily  statements  to  be  made  to, Ky.  202 

REGISTRATION, 

of  warehouse  receipts  or  certificates  by  party  i.s.suing  them,.  .  Wis.  822 

REMEDIES, 

civil,  in  addition  to  the  penalties  in  warehou.se  act, Md.  318 

REMOVAL, 

of  inspectors  of  grain  and  othe:s  from  office,  how  made Xol>.  .MS 

goods  must  not  be  removed  withovi*   the  written  consent  of  llic 
holder   of    receipt, Vriz.    22,    Cal.     37 


916  INDEX. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

R  EMO  VA  Ij— Continued.  page 

of  inspector  of  grain, Minn.  396 

of  members  of  board  o'  appeals  by  the  governor, Minn.  425 

REMOVAL  OF  GOODS, 

prohibited  nnless  consent  of  the  receipt  holder  be  obtained, .... 
Cal.  42,  111.  158,  Mo.  457,  N.  J.  544,  Ore.  677,  S.  C.  717,  S.  Dak. 

748,  Wyo.  832 
by  warehouseman  without  written  consent  of  owner  prohibited, 

Kan.  227 

prohibited  unless  receipt  surrendered, 

Del.  84,  Ind.   193,   196,  Iowa,  213,  Ky.  256,  Md.  318,  Mich. 

355,  Tei  n.  751 

without  consent  of  owner,  conversion, Tenn.  753 

warehouseman  liable  if  he  permits  the  removal  ichile  receipts  out- 
standing,   Ohio,  654 

duty  as  to,  where  bonded  warehouse  on  fire  during  night-time, .  .  .Ky.  277 

penalty  for  improperly  permitting  same, Mor.t.  502 

place  of  storage  may  be  changed, Conn.  78 

if  wrongfully  done  by  warehouseman  it  is  larceny, Va.  779 

when  by  operation  of  law  parts  of  warehouse  act  do  not  apply,  S.  C.  718 

when  warehouseman  authorized  to  remove  grain, Xelj.  520 

indictment  for  doing  so  unlawfully,  requisites  of, Mo.  49S 

may  be  made  for  preservation  of, Kan.  245 

bailor's  right  of, Ga.  1 14 

agreement  to  give  notice  of,  effect  of  failure, Minn.  437 

RENT, 

to  be  paid  samplers  of  tobacco,  rate  of, Va.  786 

to  be  paid  by  warehouseman  for  use  of  part  of  carrier's  right  of 

wa}% Minn.  419 

to  be  paid  railways,  how  determined, N.  D.  618 

REPAIRS, 

when  property  left  with  mechanics  for  repairs  may  be  sold, .  .S.  C.  724 

REPLEVIN, 

prior  demand  not  necessary, Del.  85,    Te7in.  755 

when  bailor  cannot  maintain, Miss.  451 

owner  may  maintain,  for  bailed  property, Me.  313 

warehouseman  may  maintain  for  goods,  when, Mich.  359 

bailee  may  maintain, Mo.  494 

when  it  will  lie  where  goods  commingled, III.  168  171 

when  grain  has  been  mingled  and  subsequently  divided, Wis.  827 

will  not  lie  ivhere  grain  has  been  commingled, N .  D.  625 

writ  will  be  quashed  ivhen  storage  not  paid, D.  of  C.  89 

tender  of  storage  due  not  necessary  before  replevin  brougJit,  uJien 

D.  of  C.  88 

storage  charges  must  be  paid  before  it  will  lie, Ark.  31 


INDKX. 


'Jl' 


References  to  lau^  arc  printed  in  ronmn.     Tlmsr  In  .Inisin,,.  or,-  in  HoUch. 
REPLEVIN— Continued. 

tender  of  charges  ynust  he  made  before  action  },rnu,jhl,  K„n  '^-^'V^ 

burden  of  proof  ivhere  there  is  a  breach  of  Ijond, ///'  J";!* 

breach  of  bond  in, ' 

cannot  be  maintained  by  holder  of  false  warehouse  receipt,.  ..  .'  Wis    S31 

will  lie  for  property  delivered  by  mistake, .' .  j>„'  on'> 

improper  delivery  to  defendant  in  suit,  xcarehou.,cman  iiablr,.  ..V   Y    r,7y 
will  not  lie  agai7ist  xoarehouseman  who  has  delivered  on  a  valid  re- 


ceipt, 


I'd.  mn 


prohibition  against  removal  of  goods  without  return  of  receipt 
does  not  apply  in  case  of, i^j^'  ^^g 

REPORTS.     See  also  ANNUAL  REPORTS. 

to  be  made  daily  by  clerks  of  chief  inspector  of  tobacco, Md.  322 

of  chief  grain  inspector  to  lie  filed  monthly  with  auditor  of  statei 

.     .  Kan.  235 

of  gram  mspectors  to  be  filed  monthly  with  auditor  of  state,  Kan.  234 

to  be  made  quarterly  by  chief  inspector  of  tobacco Md.  323 

to  railroad  and  warehouse  commission,  penalty  for  failure  to  make, 

III'.  1.54 
to  be  made  by  warehousemen  to  railroad  connnissioners,  S.  Dak.  734 
to  be  made  by  warehousemen  to  board  of  connnissioners,.  .Okla.  663 
of  country  warehouses  to  railroad  and  warehouse  conmiission, 

Minn.  413 
from  country  warehouses,  to  whom  made, Minn.  413 

REPUTATION, 

of  bailee  not  in  issue  in  case  of  theft,  when, I'a.  7!t5 

RES  GESTM, 

when  warehouseman's  statements  constitute, Cal.     51 

RES  JUDICATA, 

in  case  actions  at  law  and  in  equity, /v  y.  273 

RESTRICTIONS, 

governing  the  location  of  warehouse.?, S.  Dak.  740 

REVENUE  LAW, 

710  tax  on  postal  cards  notifying  consignee  of  arrirnl  of  yotxi.^ Pa.  702 

REVIVAL, 

of  lien  ivith  regained  possession, Mirh.  372 

REVOCATION, 

of  licenses,  how  made, Mo.  -16! 

of  license  of  warehousemen,   when, Minn.  400,  Mo.  470 

RIVER, 

unprecedented  rise  in,  act  of  Cod, \fo.  494 

what  reasonable  notice  of  unu.'^ual  rise  of, Md.  328 


918  LNDEX. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

RULES,  PAGE 

of  railroad  commissioners  to  be  published, N.  D.  613,  S.  Dak.  731 

publication  of  rules  governing  inspection,  weighing,  etc.,  of  grain, 

Minn.  399 

governing  country  warehouses  to  be  posted, Minn.  408 

for  the  weighing  of  grain, 111.  157 

SAFE  DEPOSIT, 

right  to  open  only  in  presence  of  both  lessees,  questioned, .  .  .  .D.  of  C.  89 

bailee  must  not  retain  duplicate  key, Cat.  52 

lessor  not  entitled  to  know  value  of  articles  stored, Cal.  53 

lessors  bound  to  ordinary  care, Cal.  52 

lessor  must  use  due  care  in  their  selection  of  employees, Cal.  52 


ST.  PAUL, 

liouses  in,   where  grain  mixed   declared  public   warel 

Minn.  384 

SALE, 


.\UL, 

warehouses  in,   where  grain  mixed   declared  public   warehouses, 

Minn 


what    constitutes, Ala.  7,  III.  159 

for  storage  charges,  when  and  how  made, 

Cal.  40,  Colo.  65,  Conn.  77,  D.  of  C.  86,  la.  215,  Ky.  258,  La.  295, 
Mich.  356,  Miss.  448,  Mo.  455,  N.  J.  546,  R.  I.  706,  S.  C.  719, 

Wash.  802 

for  storage  charges,  bonded  warehouse,  notice  of, Ga.  98,  99 

the  requirement  as  to  notice  of  sale  for  charges  must  be  strictly  com- 
plied with, Colo.  66 

when  a  sale  for  charges  is  excessive, Minn.  435 

prohibition  against,  when  warehouse  receipt  outstanding,.  .  .  .Va.  778 

by  bailee  conveys  no  title  on  purcliaser, N.  H.  542 

a  contract  for  sale  of  grain  construed,  storage  an  incident,.  .  .  .Minn.  444 

of  unclaimed  property,  when  and  how  made, 

Fla.  92,  Mich.  363,  Minn.  375,  Mo.  486,  Xeb.  SQ.^j,  X.  D.  619, 

Vt.  773,  Wash.  804,  Wis.  811 

of  perishable  property,  when  and  how, 

Ala.  4,  Mass.  337,  Mich.  358,  N.  D.  619,  S.  C.  720 

of  perishable  property,  bonded  warehouses, Ga.  100 

penalty  for  unauthorized  sale  by  warehouseman  or  carrier,  X".  Y.  560 

by  carrier  or  warehouseman  prohibited, X^.  Y.  559 

of  colored  grain  prohibited,  penalty, Minn.  420 

tobacco  to  be  sainpled  prior  to, Va.  788 

of  unclaimed  tobacco,  how  made, Va.  791 

pledgee  has  right  to  sell  whether  stated  in  agreement  or  riot, ....  Tex.  768 

right  to  sell  pledged  property, III.  171 

by  pledgee  authorized,  when, Ind.  197 

pledge  of  ivarehouse  receipt  in  legal  effect  a, III.  179 

when  factors  may  refuse  to  comply  with  owner's  order  to  sell, .  .  Tenn.  754 

no  implication  of  conversion  therefrom, Cal.  48 


INDEX.  91  i  I 

References  to  laxvR  are  printed  in  roman.     Those  to  decisions  ore  in  i7a/iV«. 

SALE — Continued.  I'u.k 

no  implication  oj,  from  a  bailment, /'„    (jijci 

of  property  for  freiirht,  when  and  how  maile, ( )hi(.,  Gill 

of  freight  for  charges,  disposition  of  proceeds Ohio,  [V.\\ 

of  goods  without  consent  of  holder  of  receipt  or  hill  of  ladiim. 

Mo.  157,  NM).  G22,  S.  Duk'.  717 

when  the  mixing  of  grain  makes  the  transaction  a  sale, Ohio,  (VJC. 

of  grain  when  out  of  condition, InJ    iss   Sc]>.  511) 

holding  an  option  to  buy  does  not  constitute, Minn.  -i:}2 

agreement  to  deliver  flour  for  wheat  deposited,  comtitules Ind.   I'K) 

where  wheat  commingled  and  flour  to  be  returned, Mo.  491 

when  commingling  of  goods  effects  a  sale, ///.  ic,s,  Minn.  432 

of  explosives  after  dark,  prohibited, Mont.  502 

order  upon  warehousernen,  bona  fide  purchaser  protected, Cal.     49 

btj  warehouseman  of  stored  grain,  owner  protected, Minn.  431 

essentials  of  sale  by  way  of  warehouse  receipt, G'o.   1  Hi 

when  transfer  of  a  receipt  constitutes  sale  by  way  of  mortgage, ///.   175 

of  warehouse  receipt  without  indorsement,  title  transferred, ....  Minn.  44 1 

dealers  holding  grain  in  railroad  cars,  constitutes, Ind.  199 

holding  option  to  purchase,  when  a  sale, la.  219 

made  unlawfully  by  warehouseman,  indictment, Mo.  49,8 

by  bailee  constitutes  conversion, Ki/.  '11  Ty 

assent  in  writing  must  be  obtained, Ma.       2 

of  bailor's  goods,  effect, A'//.  27  I 

of  stored  goods  prohibited, Conn.     75 

penalty  for  unlawful  sale  of  deposited  property, Mass.  334 

of  goods  while  in  warehouse, Oa.  106,  Ind.   196 

ratification  of  unauthorized  sale, Ky.  275 

SAMPLE, 

grain  may  be  sold  by, Kan.  238,  Minn.  400 

of  grain  to  be  furnished  by  chief  inspector, Kun.  234 

of  tobacco  to  be  selected  by  inspectors, Ohio,  G40 

of  tobacco  must  represent  package, .  .  ( )hio,  643 

tobacco  inspector  prohibited  from  appropriating, Ohio,  641 

mutilation  of  tobacco  samples, Ky.  267 

of  tobacco,  how  done  up, Mo.  4.S3 

of  grain  to  be  furnished  by  chief  inspector, Minn.  39S 

SAMPLERS.     See  also  INSPECTION  OF  TOB.^CCO. 

manifests  and  receipts  to  be  furnished  by  sampler  of  tol)acco, .  .  Va.  7s  I 

removal  of, Va.  7s9 

when  only  half  fees  to  be  paid  to, ^  !*•  7S5 

to  keep  records  of  reprized  packages,  penalty  for  failure, Va.  790 

to  sell  unclaimed  tobacco, ^'•^-  "^1 

not  to  deal  in  tobacco,  penalty, Va.  7.85 

fees  of,  for  sampling  tobacco, Va.  785 

liability  of,  terminates  on  delivery  and  acceptance  of  tobacco,  Va.  785 


920  INDEX. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

SAMPLER'S  TICKET,  page 

not  a  ivarehouse  receipt, ///.  172 

SAMPLING, 

manner  of  sampling  tobacco, Va.  782 

SCALES, 

right  of  inspection  of, 111.  142,  Kan.  230,  Neb.  521 

subject  to  inspection  and  test, Mo.  470 

in  public  warehouses  subject  to  inspection  and  test, Okla.  666 

in  grain  warehouses  to  be  tested  by  railroad  commissioners,  S.  Dak.  739 

proprietors  of  tobacco  warehouses  to  furnish, Va.  789 

to  be  furnished  inspector  of  tobacco, Mo.  484 

to  be  furnished  by  warehousemen,  when, Mo.  479 

carriers  to  furnish,  when, Mo.  479 

under  state  weigher  exempt  from  jurisdiction  of  city  weighers, 

Minn.  402 

penalty  for  refusing  state  weighmaster  access  to, Minn.  394 

must  be  sealed, Minn.  393 

SCALE  TICKETS, 

not  warehouse  receipts, la.  223 

purchaser  of,  not  protected,  when, la.  223 

SCHOOL  FUND, 

when  proceeds  of  sale  of  unclaimed  property  paid  into, 

Neb.  507,  Wash.  806 

SEAL, 

of  railroad  and  warehouse  commission, 111.  1 55 

record  of  all  original  and  substituted  seals  to  be  kept, Minn.  404 

the  breaking  of,  a  misdemeanor,  penalty, Minn.  405 

SEALERS  OF  WEIGHTS  AND  MEASURES, 

who  to  be  for  state  and  counties,  deputies, Minn.  421 

SEGREGATION, 

what  constitutes,  and  effect  of, Cal.  55 

essential  to  protect  purchaser  of  portion  of  goods, Cal.  55 

u'hen  warehousemen  estopped  to  set  up  want  of, Cal.  56 

SEPARATE  BIN, 

grain  to  be  stored  in,  if  owner  desire, Mo.  462,  Neb.  512 

if  grain  stored  in,  receipt  shall  so  state, Ind.  185 

SERVICE, 

of  notice  of  sale  for  storage  charges,  how  made,  Mass.  336,  Mich.  356 

SETTLEMENT, 

must  be  with  " party  aggrieved," Ky.  267 

with  customer  must  be  an  actual  settlement, Ky.  267 


INDEX.  (»2l 

References  to  laws  are  printed  in  rornan.     Those  to  decisions  are  in  italics. 

SHERIFF,  I.A(JE 

goods  stored  by,  warehouseman  protected, Mo.    WY.i 

may  break  outer  door, I '/.  775 

to  make  sale  of  unclaimed  property, Nel).  5(Mi 

liable  if  he  allows  goods  to  be  sold  for  storage  charges, Cat.     54 

SHIPMENT, 

of  wheat  out  of  state,  when  receipt  not  returned,  warehouseman  crimi- 
nally liable, la.  218 

SHIPPERS, 

facilities  which  railroads  must  furnish  to, S.  Dak.  74G 

when  side  tracks  must  be  constructed  for, S.  Dak.  710 

to  affix  cards  to  cars  containino;  ^rain,  effect  of  failure,.  .  .  .Minn.    lOG 
how  far  considered  owner  of  goods, Me.  308 

SHIPPING  ORDERS, 

violation  of,  by  warehouseman  followed  by  loss  constitutes  conversion, 

Wis.  826 

SHIPPING  RECEIPT, 

not  to  be  given  until  goods  actually  on  boat, Mo.  457 

SHORTAGE, 

may  be  one-fourth  of  one  per  cent, Kan.  240 

SIDE  TRACKS, 

to  warehouses  to  be  provided  by  railways, 

N.  D.  G18,  S.  Dak.  740,  Wis.  814 
when  owner  of  warehouse  may  demand  construction  of,..  ..Minn.  414 

when  railroads  must   construct,   for  shippers, S.  Dak.  740 

failure  to  agree  upon  location  of,  effect, Minn.  415 

agreement  as  to  compensation  for, Minn.  415 

to  be  kept  in  repair  by  railroad  company, Minn.  415 

penalty  for  failure  to  construct, S.  Dak.  740 

ivhat  must  be  shoion  in  an  action  to  compel  carrier  to  operate,.  .  II'/.s-.  814 

SIGNATURE, 

penalty  for  forgery  of  warehousemen's, Ma.-J.s.  33.) 

"SPECIAL," 

grain  in  separate  bins  to  be  so  marked, Okla.  ().5S 

SPECULATION, 

by  tobacco  inspectors  prohibited,  penalty, Oluo.  G3S 

in  grain  in  own  warehouse  prohibited, 'H-  1"^ 

STABLE  KEEPERS, 

lien   of, Mi.m.a.0 

STATE,  ,^, 

suits  under  warehouse  act  to  be  in  the  name  of, Neb.  5'-8 


922  INDEX. 

References  to  laics  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

STATE— Contimied.  page 

authority  of,  to  regulate  grain  warehouse  htsincss  irill  not  permit 
state  to  erect  irarehouses, Minn.  446 

STATE  AUDITOR, 

bonds  given  under  warehouse  act  to  he  filed  with, S.  Dak.  738 

STATEMENT, 

of  condition  and  management  of  warehouse  to  be  furnished  when- 
ever required, 111.  151,   Minn.  3S9,  Neb.  525 

requirement  of  the  constitutioii  as  to  statements  by  warehouse- 
men,   " 111.  126 

to  be  furnished  board  of  trade  bj-  warehousemen, Kan.  244 

by  public  warehousemen  to  be  posted  weekly, 

111.   134,  Kan.  244,  Ky.  262,  Minn.  389,  Neb.  509 

to  be  made  to  registrar  daily 111.  134,  Ky.  262,  Minn.  389 

to  be  posted  by  public  warehousemen, Okla.  663 

of  proceeds  of  sale  for  charges  to  be  filed  with  county  treasurer, 

Mich.  358 
to  be  made  in  case  of  sale  of  unclaimed  property, la.  215 

STATE  TREASURER, 

to  hold  all   fines  and   penalties   collected   under  warehouse  act, 

S.  Dak.  735 

to  receive  all  moneys  from  inspection  of  grain,.  .  .Minn.  399,  Neb.  530 

.  to  keep  records  of  sales  of  unclaimed  property,.  .  .Mich.  365,  Vt.  774 

to  be  sealer  of  weights, Minn.  421 

STATE  WEIGHMASTER.     See  WEIGHING  OF  GRAIN;  GRAIN. 

STATUTE  OF  FRAUDS, 

transfer  of  property  by  bill  of  lading  complies  with, Mont.  504 

promise  to  pay  storage  citarges  not  within, Ala.     12 

STATUTE  OF  LIMITATIONS, 

when  it  begins  to  run  in  cases  of  bailment, 

la.  221,  S.  C.  726,  Tex.  767,  W.  Va.  809 

begins  when  bailee  holds  title  adversely  to  bailor, Ga.  104 

begins  from  date  of  demand  and  refusal, D.  of  C.     89 

begins  to  run  on  date  of  last  item  of  account, Ga.  104 

when  not  inconsistent  in  pleading, S.  C.  727 

STEALING, 

penalty  for  stealing  from  warehouse, Mich.  368 

STOCKHOLDERS, 

liability  of, A' .  Y.  600 

STOCKYARD, 

analogy  between  business  of  and  warehousing, N.J.  549 


INDKX.  <H;> 

References  to  laws  are  printed  In  ronmn.     TI,osr  to  ,l,nsi„ns  nr,  in  ilalus 

STOLEN  GOODS.     See  also  LOSS  liY  TIIIOI.T.  ,.^,.b 

cannot  be  validly  pledged, U'a/t/i    807 

one  in  possession  of  must  prove  innocence  or  disprove  idrutil^/  of 

goods, f.^^f        r^ 

STOLEN  PROPERTY, 

innocent  redelivery  of,  by  bailee  not  conversion, Conn.     70 

STOPPAGE  IN  TRANSITU, 

right  of,  may  continue  after  goods  stored, s.  DnI:.  7  Ml 

right  of  ceases  upon  assignment  of  hill  of  lading, M, .  :u  | 

STORAGE, 

when  tobacco  inspectors  may  rent  storafjo  room, Md.  n^'y 

when  a  contract  is  one  of  storage  and  not  of  carriage, ///.   1G2 

of  grain,  contract  for  construed, ///_  i(j7 

STORAGE  CERTIFICATES.     See  WAREHOUSE  RECEIPTS. 
STORAGE  CHARGES.     See  also  RATES  OF  STORAGE. 

IN  GENERAL. 

bailor  personally  liable  for, Ca.   110 

need  not  be  a  warehouseman  to  be  entitled  to, ll'i/o.  S.'{7 

when  contract  for  an  entirety, .V.  }'.   '}7'A 

must  be  uniform, Mo.    ic^ 

maximum  rate  fixed  by  statute, .* 

Kan.  245,  Minn.  390,  Neb.  518,  N.  D.  GIG,  Okla.  6G3 

limit  of,  in  country  warehouses, Minn.  408 

maximum  rate  for  handling  grain  in  elevators, Minn.  3S3 

act  prescribing  held  constitutional, 

///.   127,   182,  Mo.  499,  X.   Y.  001,  .V.  /;.  017,  02G 

statute  fixing,  being  penal  must  be  strictly  constmed S.C.  725 

warehouseman  not  to  be  made  defendant  when  he  claims  only, 

1).  of  C.     87 

when  a  contract  to  pay  will  be  implied, S.C.  727 

when  court  will  fix  at  a  reasonable  rate, ///.  1 05,  N .  Y .  5G9 

goods  received  free  of  storage,  charge  can  be  made,  when, ///.  179 

tender  of,  may  be  ivaived  by  icarehouseman, Minn.  435 

when  tender  not  necessary, D.  nf  C.     88 

must  be  paid  before  replevin  brcvght.  Ark.  31,  D.  of  C.  S9,  Kan.  252 

when  not  recoverable, Tenn.  75-1 

if  paid  twice  warehouseman  liable  for, A';/.  275 

schedule  of,  to  be  published  annually, 

Kan.  245,  Minn.  390,  Mo.  4G7,  Neb.  518.  Okl:i.  003,  S.  Dak.  7.^8 

rates  to  be  posted  semi-aiuiually, Ky.  203 

warehousemen  may  hold  goods  until  paid Ca.  109 

warehousemen  may  hold  goods  until  paid Mo.  4.SG 

warehousemen  have  lien  for.  Conn.  70,  la.  215,  N.  J.  540,  N.  Y.  553 
cannot  be  changed  by  notice  in  warchous^e Ga.  109 


924  INDEX. 

Beferences  to  laws  are  printed  in  rnman.     Those  to  decisions  are  in  italics. 

STORAGE  CRARGES— Continued.  page 

promise  to  pay  not  idthin  statute  of  frauds  when, Ala.     12 

if  entitled  to,  lien  attaches, ^^  yo.  837 

continue  when  warehouseman  holding  under  his  lien, S.  C.  728 

lien  for  general  balance  due,  when, S.  C.  728 

lien  for,  superior  to  chattel  mortgage, Wyo.  835 

lien  for,  superior  to  unrecorded  chattel  m,ortgage, N.  Y.  577 

when  lien  for,  subordinate  to  chattel  mortgage, Mo.  493,  N.  Y.  576 

lien  for,  dir.tinguished  from  lien  for  freight, Minn.  436 

lien  for,  revives  with  regained  possession, Mich.  372 

lien  on  balance  of  goods  after  partial  delivery, Mass.  343 

recoverable  where  no  agreement  as  to  temperature  of  storage  rooms. 

Conn.     79 
there  must  be  some  act  of  possession  by  transferee  of  receipt  to  hold 

him  liable  for, X .  Y .  592 

when  not  earned  until  storage  completed, N .Y .  573 

when  carrier  storing  goods  not  liable  for, R.  I.  712 

when  contract  an  entire  one,  pro  rata  charges  cannot  be  recovered,  Cal.     53 

not  earned  where  property  ruined, X.  Y.  584 

if  goods  destroyed,  must  be  paid  to  date  of  destruction, Ala.     12 

when  they  will  exceed  value  of  property, Mass.  337 

surrender  of  warehouse  receipt  by  pledgee  to  guarantor;  liability  of 

latter  for  charges, N.  Y.  592 

rate  of,  must  be  stated  on  warehouse  receipts, S.  C.  716 

no  implication  to  reduce,  on  account  of  insurance, N.  Y.  574 

against  unclaimed  property, la.  215 

assignee  of  warehouse  receipt  assumes  the  same, ///.   166 

what  held  to  be  sufficient  notice  on  warehouse  receipt  of  non-payment, 

Minn.  439 

judgment  for,  not  a  bar  to  an  action  for  conversion, N .Y .  569 

overcharging  by  railroads,  penalty, S.  C.  723 

lien  on  freight  for,  when, Ohio,   632 

on  freight  to  be  filed  by  railroad  commission, S.  C.  722 

if  agent  stores  goods  as  his  own,  personally  liable  for, Ga.   105 

sheriff  liable  if  he  allows  goods  to  be  sold  for, Cal.     54 

when  goods  stored  by  sheriff,  warehousemen  entitled  to,  regardless  of 

termination  of  suit Mo.  493 

for  cotton  fixed  by  statute, S.  C.  722 

tobacco  warehousemen  entitled  to,  after  three  months, Ohio,  641 

amount  to  be  paid  samplers  of  tobacco  for, Va.  786 

warehouse  fees  for  tobacco  limited  by  statute, Mo.  486 

receipts  from  bonded  warehouses  mu.st  state, Ga.     97 

depositor  liable  for  storage  charges,  bonded  warehouses, Ga.  101 

SALE  FOR. 

when  warehousemen  have  right  of, X.  C.  604,  S.  C.  719 

when  may  be  made,  manner  of,  etc., 

Cal.  40,  D.  of  C.  86,  Me.  310,  Mass.  336,  Mich.  356,  Miss.  448, 

Mo.  455,  N.  Y.  546,  553,  R.  I.  706 


INDEX.  rjO-, 

References  to  laws  are  jmnted  m  roman.     Those  to  dccisiom  arc  in  italic^,. 

STORAGE  CHARGES-Con<mi«;d.  p^o„ 

notice  of,  how  given, 

Cal.   54,   Ind.   202,   la.   210,    Ky.   258,    Mass.  33s',' Midi.  :«7, 

R.  I.  707,  S.  C.  719,  Wash.  S02,  Wyo!  S3J 

question  as  to  notice  given,  etc.,  for  jurij, /a    -jKl 

provisions  concerning;, j       .,<jr 

of  different  kinds  of  property,  when  it  may  l)e  made, \\';lsIi.  S02 

record  cf  sale  to  be  kept, -^jj^.l,    ^r^ 

if  made  without  notice  constitutes  conversion, X.  Y    508 

must  be  made  within  reasonable  time  after  expiration  of  year, .  .  N.  Y.  575 

luarehouseman's  right  to  sell  may  be  modified  by  agreement, A^  }'.  575 

lien  holders  may  purchase, Wyo.  S35 

clerk  and  crier  may  be  appointed  by  lien  holder, Wyo.  835 

liability  for,  when  improperly  made, Cat.     53 

bill  of  sale  to  be  given, Wvo.  835 

oath  and  duty  of  appraisers, Wyo.  834 

appointment  of  appraisers, W\-o.  833 

depositor  liable  for  any  deficiency  after  sale, 

Mass.  338,  S.  C.  721,  Wyo.  835 

disposition  of  proceeds, 

Conn.    77,   la.    217,  Ky.   258,   La.  295,    Mass.  337,  X.  Y.  555, 

X.  C.  001,  R.  I.  707 

when  proceeds  insufficient,  depositor  liable, X.  C.  000 

application  of  proceeds, Wash.  802 

adjournment  of, Wyo.  835 

must  not  sell  more  goods  than  required  to  pay  charges  and  costs,  Minn.  435 

penalty  if  made  in  unlawful  manner, X.  C.  605 

disposition  of  surplus, X'.  C.  605,  S.  C.  720 

owner  may  recover  surplus,  when, Mich.  35S 

surplus  to  be  paid  to  county  treasurer, Mich.  3.58 

procedure  in  case  of  perishable  property, la.  217 

bonded  warehouses, Ca.     9S1 

redemption  before  sale, X.  V.  554 

STORAGE  CONTRACT, 

warehouseman  has  right  to  terminate, ///.   KVS 

inability  to  store  amount  of  grain  offered,  effect, ///.  107 

STORAGE  FEES.     See  STORAGE  CHARGES. 

STORAGE  RECEIPTS.     See  also  WAREHOUSE  RECEII>TS. 

what  constitutes  issuance  of, Md.  316 

declared  negotiable  by  statute, Mtl.  316 

SUBPCENA, 

failure  to  obey,  of  board  of  railroad  and  warehouse  conniii.-wioncrs, 
penalty, M<t.    177,  (^kla.  763 

SUBROGATION, 

where  insurance  company  deprived  of  the  right  of,  by  lease,  /tolicy 
valid, 5-  C-  729 


926  INDEX. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

SUBROGATION— Continued.  page 
doctrine  applies  when  warehouseman  has  paid  third  person  his  ad- 
vances on  goods, N .Y .  568 

SUBSTITUTE, 

of  chief  inspector  of  tobacco,  appointment  and  oath  of, Md.  323 

SUBSTITUTION, 

of  property  pledged, Minn.  437 

if  other  property  substituted  when  receipt  is  pledged  lien  is  lost, .  .  Wis.  831 

a  fraud  to  substitute  other  property  for  that  stored, III.  170 

pledgor  of  receipt  has  equitable  lien  where  other  property  substituted, 

III.  170 

of  other  goods  ichen  receipt  outstanding  held  not  contrary  to  laic,  N.  Y .  593 
a  contract  for  substitution  of  other  property  held  not  contrary  to  law, 

N.  Y.  579 

SUIT.     See  also  ACTION. 

against  warehousemen  to  be  in  the  name  of  the  people, 111.  155 

on  warehouseman's  bond,  when, 111.  144,  Neb.  523 

qui  tarn  actions  under  warehouse  act, 111.   155 

attorney  general  and  state's  attorney  to  prosecute, 111.   155 

by  railroad  and  warehouse  commission, 111.   152 

SULPHURIC  ACID, 

care  to  be  exercised  in  the  storage  of, Ore.  684 

SUNDAY.     See  also  LORD'S  DAY. 

warehouses  not  to  be  kept  open  on, Mich.  365 

SURETIES, 

suspension  from  exchange  no  defense  for, Ky.  273 

that  warehouse  business  a  monopoly  no  defense  for, Ky.  273 

on  bond  released  where  sale  for  duties  postponed, N.  Y.  572 

SWINDLING, 

by  warehousemen,  penalties  for, Ind.  197 

TAMPERING, 

with  stored  grain  prohibited, 111.  141 

TARE, 

no  allowance  for,  in  cotton  to  be  made, S.  C.  724 

to  be  deducted  from  gross  weight, Mo.  483 

TAX, 

on  tobacco  warehouses,  graduation  of, N.  C.  60S 

not  to  be  imposed  upon  auction  sales  of  tobacco,  when, Ohio,  GS6 

on  grain  elevators, Tex.  765 

notice  of  unpaid,  must  appear  on  u-areJinuse  receipt, Conn.     80 

TAXABLE  DEBT, 

stored  goods  are  not,  until  demand  and  refusal, .Ga.  106 


INDKX.  ltJ7 

References  lo  laws  are  printed  in  roman.     Those  to  ikciswns  arc  m  italics. 

TEMPERATURE.     See  also  COLD  STOR.iGE.  paok 

agreement  as  to,  in  cold  storag;  contracts,  crroneowi  instruction,.  . III.   172 

TENANTS  IN  COMMON, 

owners  of  commingled  grain  are, la.  219,  Itul.  203,  Minn.    i.Ut 

TENDER, 

by  elevator  receipts,  valid, M  irli .  ;i74 

may  be  made  by  icarehouse  receipt, A'.  Y .  Fi'M) 

of  storage  charges  may  be  waived  by  warchonscman, Minn.  \'.\'y 

of  damages  .or  land  condemned  for  warehouse  site,  liow  made, 

S.     Dak.  7ir, 

TERMINAL  POINTS, 

warehousemen  to  furnish  poHc-e  protection  at, Minn.    105 

act  making  Fergus  Falls  a, Miiui.    101 

act  making  Little  Falls  a, Minn.  -102 

act  making  New  Prague  a, Minn.  429 

act  making  Saint  Cloud  a, Minn.  400 

act  making  Willmar  a, Minn.  4"29 

act  making  Winona  a, Minn.  401 

TERMINAL  INSPECTION, 

application  for  service,  how  made,  etc., Minn.  428 

TERMINATION  OF  DEPOSIT, 

depositary  may  terminate  upon  reasonable  notice, ("al.     30 

THEFT.     See  also  LOSS  BY  THEFT. 

sale  by  a  depositary  constitutes  a, I-a.  299 

THIRD  PERSONS, 

where  right  acquired  by,  in  thing  bailed,  bailor  cannot  revoke  bailment, 

Md.  327 
loss  of  goods  occasioned  by,  bailee  may  recover  for, Conn.     78 

TIMBER   LIENS, 

identification  of  property  not  required  in  cases  of Wyo.  836 

to  be  paid  pro  rata, 1'  i/o-  836 

TITLE.     See  also  BAILEE. 

IN    GENERAL. 

bailee  has  no  better  title  than  his  bailor, Ala.     10 

when  none  in  depositor, ^'o'"-     ^^ 

bailee  cannot  confer, ^-  of  C     SS 

of  goods  in  issue,  warehouseman  not  to  be  made  defendant,  I).  <>f  ('.     s7 

dispute  as  to,  the  right  to  interplead, 6'n.   105 

there  must  be  some  as.ser/ion  of,  to  constitute  conversion, Cal.     49 

bailee  cannot  acquire  title  adver.'<e  to  bailor, ^^  "*■  •*<2-'> 

warehouseman  not  guarantor  of  title  of  his  depositor /^-  299 

the  legal  title  of  pledg-d  propcrlii  remain.'^  m  pirdgor, ./v.'/-  277 

parol  reservations  as  to,  when  valid, jcnn.  i  .A 


928  INDEX. 

References  to  laws  are  printed  in  ruman.     Those  to  decisions  are  in  italics. 

TITLE  IN  GENERAL — Continued.  page 

when  none  in  bailor,  delivery  to  true  owner  a  good  defense, Vt.  775 

judgment    gainst  bailee  conclusive  as  to, Ala.  10 

bailee  has  reasonable  time  in  which  to  investigate  title  to  goods  held, 

N.   Y.  568 

if  bailee  alleges  it  to  be  in  another  than  bailor  he  must  prove  it,.  .  .Ore.  682 

to  stored  property,  how  passed, N.  C.  603 

when  title  in  dispute  bailee  must  defend  himself  at  law, 

N.  J.  548,  N.  Y.  571 
when  question  of  title  of  stored  goods  in  issue,  riglits  of  ware- 
housemen,   N.   Y.  551 

determination  of  title  to  propert}^  held  by  public  warehousemen, 

Mass.  339 

of  warehouse  act  embraces  sections  against  fraud, Mo.  498 

none  conveyed  to  purchaser  from  bailee, N .  H.  542 

pledgee  of  bill  of  lading  has  sufficient,  to  recover  of  one  who  converts  the 

property  represented, Mass.  350 

of  stored  grain  remains  in  holders  of  the  receipts, Kan.  239 

to  stored  property  2)asses  by  .sale  of  tcarehouse  receipt, Minn.  441 

to  goods  passes  by  indorsement  of  warehouse  receipt, Me.  309 

legal  title  passes  by  assignment  of  bill  of  lading, Me.  314 

passes  by  delivery  of  order  on  warehouseman,  when, Cal.  61 

BAILEE    CANNOT    DENY    BAILOR'S    TITLE. 

notice  of  adverse  claim, Ala.  9 

cannot  set  up  title  in  himself, Kan.  250 

cannot  show  ownership  in  third  person, N.  Y.  567 

bailee  m.ay  show  assignment  since  bailment, Me.  31 

evidence  tending  to  impeach  bailor's  title  not  receivable, La.  299 

TOBACCO.     See  also  TOBACCO  WAREHOUSES  ;  INSPECTION  OF 

TOBACCO;   LEAF  TOBACCO. 
establishment,  construction  and  discontinuance  of  warehouses  for 

the  storage  of, Va.  780 

who  are  tobacco  warehousemen, Ky.  266 

duties  of  tobacco  warehousemen, Ky.  267 

manner  of  sampling,  weighing  and  branding, Va.  782 

maximum  rates  for  selling, S.  C.  721 

compensation  for  selling  at  auction, Ky.  268 

auction  sales  of,  to  be  free  and  open, Ky.  270 

bills  for  tobacco  sold  to  be  furnished  seller, S.  C.  721 

where  tobacco  of  planter  to  be  stored, Va.  788 

mutilating  samples,  penalty, Ky.  267 

hypothecation  of,  forbidden,  exception, K3-.  268 

rejections,  when  permitted,  fees, K3^  269 

liability  for  A'iolation  of  provisions  relating  to, Ky.  269 

form  of  oath  to  be  taken  by  weigher  of, N.  C.  607 

punishment  for  receiving  without  consent  of  owner Va.  790 

penalty  for  not  delivering  on  dcniand Va.  785 

penalty  for  the  deli^•e^y  of  the  wrong  tobacco  by  sampler,.  .  .  .Va.  785 


iM>i:x.  r>29 

References  to  laws  are  printed  m  nnnun.     Tho.c  to  derision,  nrr  in  UaUr.. 
TOBACCO— Con^inrw-d. 

penalty  for  delivering  without  consent  cf  .nvnn  v,i  '''K4 

penalty  for  sendin-  to  wron-  wareho„s,., .  V./  -on 

nestnif,'  prohihited,  ncnaltv  .  .  J     L 

^  •'    ••••*.,,  Vii    7M0 

nestni-  and  sido-prizin-  forbidden,  penalty,.  .  '    '  Kv'  IW) 

penalty  for  use  of  false  brands .'.  .  y/ '  JlJJjJ 

reprisinjj  of  packages,  record  of,  penalty  for  failun".  to" keep  '  '  Va'  T^K) 
when  shipped,  record  of  to  be  kept  by  connnand.-r  of  vcsJl'.  '  Va    rw 

sales  of,  to  be  approved  by  owner, '     .,       ,„r 

when  unclaimed  to  be  sold,  maimer  of, yl^'  ^g"' 

penalty  for  false  branding, \ y'''       ' 

samplers  to  furnish  manifests, v"    7^4 

if  unsound  or  "  western,"  what  sampler's  receipt  must  slate  '  '  Va'  782 

loose  tol)acpo  to  be  weighed  by  samplers, '.   \,,^    7x3 

to  be  weighed  on  scales  of  tobacco  warehouseman, .   \,^    '-^s') 

act  does  not  apply  to  manufactured  tobacco .' Va    789 

to  be  protected  by  open  policy  of  insurance  by  proprietor  of  ware- 
house,   ,.      _ 

\  a.  788 

TOBACCO  WAREHOUSES, 

annual  tax  placed  upon,  graduation  of, X.  f  (KW 

sworn  statement  to  be  made  for  tax  purposes, N.  ('  G08 

bill  of  charges  to  be  rendered  seller, • xC  607 

charges  of,  regulated  by  statute, N\  C  007 

TORT.     See  also  INJURIES. 

conversion  a  tortious  act, f^f  ,,, 

waiver  of,  in  action  in  ass^impsit  for  conversion, ///  102 

an  action  on  a  contract  cannot  he  turned  itito  one  in  tort, Ohio  6.50 

liabilify  of  ivarehousemen  for  injuries  received  by  i>ersons  coming  in 

warehouses, y  y . 

action  in,  will  not  lie  where  goods  destroyed  by  fire, Mass.  31 . 1 

TOWN  COUNCILS, 

may  pass  ordinances  regulating  the  storage  of  kerosene K.  I.  71 1 

TRANSFERS, 

record  of  transfers  of  warehouse  receipts  to  l>e  kept, I.i.  Ji  1; 

TRANSFER  OF  TITLE, 

bailees  consent  to,  effect, fia      ().<; 

TRESPASS, 

action  of,  against  one  for  entering  a  warehouse,  pleatiings, Vt.  77.5 

act  of  war  does  not  constitute, Ca.  1 12 

TRIAL, 

by  judge  or  jury  where  warehou.se  to  be  erectctl  on  carriers  right 

of  way, Minn.  418 

of  action  to  acquire  warehn\i  e  site  on  railway, S.  Dak.  713 

objection  must  be  made  at,  that  receipt  not  indors^  to  plainiiff,  Mi.y.s.  452 

59 


930  INDEX. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

TROVER,  PAGE 

warehouseman  may  maintain, Ala.  14,  S.  C.  728 

when  bailee  may  maintain,  against  owner, S.  C .  728 

conversion  the  gist  of  the  action, Ala.     13 

conversion  shown  by  demand  and  refusal, D.  of  C.     89 

demand  must  be  made, Ga.  1 1 1 

actual  conversion  must  be  shoion, Ga.  Ill 

complaint  must  contain  averment  of  ownership, Ala.     13 

when  not  maintainable  against  warehouseman, Ala.     13 

when  it  will  lie  against  bailee,  improper  use  of  bailed  property, .  .  17.  776 
action  of,  will  lie  against  bailee  if  he  fail  to  deliver  on  demand, .  .]'t.  776 

right  to  mainta'n  not  effected  by  commingling  of  goods, III.  169 

action  of,  ivhere  grain  commingled, Mich.  371 

pledgee  (f  ivarehouse  receipt  may  maintain, Ga.  112,  Wis.  831 

will  lie  against  one  holding  iinder  second  receipt, Cal.     56 

if  goods  attached  while  bailed,  owner  cannot  maintain, Tenn.  754 

will  not  lie  where  goods  taken  by  armed  force, Ala.     13 

TRUE  OWNER.     See  OWNER. 

TRUSTEE, 

if  dealing  with  factor,  cestui  que  trust  protected, La.  301 

UNCLAIMED  GOODS, 

sale  of,  for  charges,  statutory  notice  must  be  given, la    221 

UNCLAIMED  BAGGAGE, 

delivery  to  warehouseman, Minn.  378 

UNCLAIMED  PROPERTY.     See  also  ABANDONED. 

disposition   of, Vt.  773 

procedure  in  case  of  sale,.  .  .  .Fla.  92,  Neb.  505,  Wash.  804,  Wis.  812 

when  may  be  sold, 

Ark.  28,    Cal.  44,    Minn.  375,   Mo.  486,    N.  D.  619,    Vt.  773, 

Wash.  804,  Wis.  811 

affidavit,  inventory,  etc.,  in  case  of  sale, Minn.  370,  Wash.  804 

disposition  of  proceeds  from  sale, 

Mich.  364,  Minn.  376,  379,  Neb.  506,  S.  C.  723,  Vt.  774,  Wash.  805 

county  treasurer  to  hold  balance  of  proceeds  of  sale, 

Cal.  45,  Minn.  377,  Neb.  507 

when  proceeds  of  sale  to  belong  to  countj^ Minn.  377 

title  to  proceeds  of  sale,  to  vest  in  state,  when,.  .  .Mich.  365,   Vt.  774 

when  balance  of  proceeds  to  go  into  school  fund, Wash.  806 

when  owner  entitled  to  balance  of  proceeds  of  sale, 

]Mich.   304,   Wash.  805 

warehousemen  have  lien  on, Minn.  378 

making  charges  out  of, la.  215 

notice  of  sale  of,  how  given, 

Mich.  362,  Minn.  378,  S.  C.  723,  Wash.  803,  Wis.  811 

notice  of  inteiition  to  sell,  how  given, Wash.  804 


iM>i:x.  93  J 

References  to  laws  are  printed  in  roman.     Those  to  decisions  arc  in  italia,. 

UNCLAIMED  mOPERTY-C ontinued.  p^,.^ 

inventory  to  be  filed  in  case  of  sale, Wi«    Sl'» 

return  of  sale,  how  made, y^'■^^'  ^y, 

justice  of  the  peace  to  make  disposition  of  prrx-ecdK Wis'  SI  ."J 

duty  of  officer  making  sale  of, '  y^'  --.', 

officers'  fees  in  case  of  sale  of \v:J  wi  •» 

-    ,       ,        ,  '  '»  In.    o  I  ij 

record  to  be  kept  of, y^r^^^    ^^^^ 

books  of  the  sale  of,  to  be  kept  for  inspection, S.  C.  721 

sale  by  samplers  of  unclaimed  tobacco,  how  made, Va"  791 

carriers  may  sell,  when  and  how, g  (^'  yvj 

UNFAIRNESS, 

complaints  of,  in  inspection  of  grain,  to  whom  made, Minn.    112 

ULTRA   VIRES, 

if  contrary  to  statute  or  public  policij  are  void, /,„/.  201 

no  defense  where  a  bank  is  running  a  warehouse  and  is  guillij  of  con- 
version,   ;//     jg3 

UNLAWFUL  SALE.     See  SALE. 

UNSALABLE  PROPERTY, 

disposition  of,  bonded  warehouses, Ga.  101 

USAGE.     See  also  CUSTOM. 

evidence  receivable  as  to, Mich    371 

evidence  of,  to  explain  terms  of  a  receipt /H^y.  207 

effect  of,  in  interpretation  of  warehouse  receipt, Mich.  371 

bailee's  liability  affected  by, Tcnn.  7.")3 

USURY, 

advances  made  by  warehousemen  to  depositors, V.  }'.  ,-,74 

pledge  of  warehouse  receipt  to  secure  usurious  loan, (ia.  l\\) 

VALUE, 

limitation  as  to,  in  bill  of  lading,  valid, Cnl.     (i2 

statement  of,  in  bill  of  lading,  binding  on  shipper, Conn.     SI 

VARL\NCE, 

when  not  material  in  case  of  date  of  conversion, Cat.     .50 

VENDOR'S  LIEN, 

fully  considered, Mo.  492 

effect  of,  where  warehouse  receipt  used  as  collateral La.  2SS 

preserved  where  non-negotiahle  receipt  given, Mo.  492 

preference  over  warehouseman's  claims, La.  295 

lien  of,  not  destroyed  by  goods  being  .stored  in  bonded  warehouse,  Mo.  192 

VIGILANCE, 

if  warehousemen  exercise,  they  are  not  ruii)lo  for  lo.ss  by  firo,  Mich.  '.MV) 

VOID, 

warehouse  receipts  arc,  if  issued  umhr  gamhling  rontrart la.  223 


932  INDEX. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 
VOUCHERS.     See  BILLS  OF  LADING;  WAREHOUSE  RECEIPTS. 

WAIVER,  PAGE 

what  constitutes  when  goods  returned  without  bill  of  lading, Ga.  120 

when  statement  of  warehouseman  constitutes  waiver  of  his  lien, .  .  CaL    54 

WAR.     See  ACT  OF  WAR. 

WAREHOUSES.     See  also  PUBLIC  WAREHOUSES;  WAREHOUSE 
SITES. 

classified, 111.    128,    Neb.  510 

all  in  cities  of  over  fifty  thousand  inhabitants  declared  public.  Mo.  454 

synonymous  with  storehouse, Mo.  491 

what  is,  within  meaning  of  penal  statutes, Ohio,  644 

need  only  be  reasonably  and  ordinarily  safe, Miss.  450 

must  be  reasonably  safe, R.  I.  712 

need  not  be  fireproof, Tenn.  753 

presumed  to  be  real  property, Cal.     51 

control  of,  by  mayor  and  board  of  aldermen, Miss.  449 

to  be   visited  and   examined  by  board  of  railroad  and  warehouse 

commissioners, Mo.  476 

for  storage  of  cotton  may  be  an  inclosed  parcel  of  land, Tex.  761 

consignments  to,  when  regarded  as  temporary, Mo.  489 

restrictions  as  to  location, S.  Dak.  740 

where  a  loarehouse  collapses  negligence  is  jtresumed, N .Y .  582 

for  the  storage  of  tobacco,  establishment,  construction  and  dis- 
continuance of, Va.  780 

change  of  proprietorship;  request  to  withdrair  goods,  effect,.  .  .  .N.  Y.  569 

delivery  to  carrier  by  depositing  in, S.  C.  726 

tax  on  grain  elevators, Tex.  765 

operating  in  official  capacity,  no  defense  where  goods  injured, .  .  N.  Y.  569 

■use  of  ground  for,  when  a  public  use, Mo.  499 

construction  of,  on  right  of  way  of  railroad, N.  D.  617 

penalty  for  burning, Mich.  365,  W.  Va.  808,  Wis.  816 

penalty  for  stealing  from, Mich.  367 

embezzlement  from,  deemed  larceny, Mich.  368 

corporations  for  the  purpose  of  constructing  may  purchase  or 
lease  real  estate, Ohio,  634 

WAREHOUSE  ACT.     See  also  POSTING. 

who  are  warehousemen,  ivithin  meaning  of, Pa.  689 

does  not  apply  to  private  warehousemen, La.  294 

copy  to  be  posted  in  warehouses, 

111.  145,  Ky.  266,  Wyo.  470,  Neb.  524,  Okla.  666,  S.  Dak.  739 

section  of,  to  be  printed  on  warehouse  receipts, La.  296 

not  to  apply  to  certain  villages  and  towns, N.  Y.  556 

Act  of  1876  construed, Minn.  441 

does  not  affect  right  to  make  special  contract  of  storage,  etc.. 

Wash.  802 
use  of  singular  number  in,  imports  plural, Wash.  801 


INDKX.  W,i 

References  to  laws  are  irrinlcd  in  roman.     Tliosr  In  decisions  arc  in  i/<Wir«. 

WAREHOUSE  ACT—Continunl.  i'aok 

bonds  given  under,  to  l)e  filed  witli  stute  midilor, S.  Dak.  7.'W 

warehousemen  lial)le  on  bond  for  violation  of, 

Nel).   f)JI,    N.   (".   (i()2,   Ok  la.   Gfi7 

does  not  apply  when  goods  removed  by  operation  of  law, 

N  J.  54G,  N.  D.  023,  S.  C.  71S,  S.  Dak.  7  IS 
sections  imposing  pcriallics  for  fraud,  germane  to  subject  of  act,  Mo.  I'JS 
when  portion  of,  concerning  warehouse  receipts  docs  not  apply,  Mo.  40fi 

construed  and  held  to  be  penal  i7i  character, Minn.  410 

notices  under,  rule  governing, Wa-sh.  SCKi 

producers  not  bound  by  provisions  of, S.  Dak.  710 

declared  to  be  retrospective, Minn.  .'JSO 

duties  and  powers  conferred  thereby  devolve  iipon  oommi.s.sioiiers 

of  railroads, ^ •  ' ^-  ^^^ 

requisites  of  warehouse  receipts  prior  to  pa.'^mge  nf, Ore.  (vst 

section  prescribing  maximum  rates,  construed, A  .  1  .  .'».»7 

does  not  impair  any  rule  of  board  of  trade  or  law  affecting  ware- 
house receipts, \\\s.  8_4 

extends  to  grain  stored  in  elevators  and  petroleum  in  barrels,  Pa.  690 

held  constitutional  as  not  embracing  more  than  one  subject 

III.   182,   Ore.  GSG,    Tcnn.  7G0 

penalty  for  failing  to  make  any  report  requiretl  by, Nel>.  527 

prosecutions  under,  to  be  in  name  of  the  state, .  .  .  Mo.  47S,  Neb.  528 

penalties    for    violation, 

Colo.  68,   Del.  84,   Ky.  257,   La.   291,   Mich,   :^r^^\,   .Minn.   3S4, 
N.  J.  545,  N.  D.  617,  Ohio,  633,  Pa.  690,  K.  I.  710.  S.  Dak.  739, 

Teun.  752,  Ore.  678,  Va.  779,  Wa.sh.  799,   Wyo.  833 

violations  a  misdemeanor, 

Minn.  414,  Mo.  458,  471 ,  X.  Y.  556,  ( )kla.  667,  S.  Dak.  739 

prosecution  of  violations  of,  how  made, S.  Dak.  738 

attornev  general  and  county  attorney  to  prosecute  suits  under. 


Neb 


<-.•> 


>-< 


board  of  commissioners  to  cause  violations  of  to  be  prosecuted, 

Okla.  671 

duty  of  board  of  transportation  to  enforce >«'••»'    J25 

duty  of  county  attorney  to  prosecute  under <  »l<l!»^  ww 

dutv  of  attorney  general  and  prosecuting  attorneys  m  ca.^^^  of 

-        .  -.  Mo.  4<7 

violations  oi, 

duty  of  prosecuting  attorney  in  cases  of  violation ^Mo.  -.- 1 

penalty  for  violation  of  sections  referring  to  tobacco >.  L  .  ous 

provisions  of  imposing  penalties  on  warehousemen  comtMutwnal,  ^ 

.  ,  ,-         r  ...  .Conn.     75 

liability  for  violation  of, 

damages  recoveral)le  for  neglect  of  duty  under..      •  •  .  •  •_■  .^.  ■ -^^    ■ 

■     Ky    272    Md.  318,  Minn.  405,  Mo.  47S,  N.  \.  ...A  S.  t.  718 
applies  to  warehouseman   issuing   receipt  against  his  own  pocxK  ^^ 

,  ,  .  Okla.  673 

prosecutions  under,  how  lirougiit 


934  INDEX. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

WAREHOUSE  ACT— Continued.  page 

individuals  may  prosecute  for  damages  aside  from, 

111.  155,  Mo.  478,  Neb.  524,  528,  N.  Y.  555,  Okla.  673 
appropriation  to  carry  out, Minn.  400 

WAREHOUSE  CERTIFICATES.     See  WAREHOUSE  RECEIPTS. 

WAREHOUSE  COMPANIES, 

may  borrow  money,  how, La.  290 

"WAREHOUSED," 

construed,    Mass.  342 

WAREHOUSEMEN.     See    also  WAREHOUSE  COMPANIES;    PUB- 
LIC WAREHOUSEMEN. 

WAREHOUSEMEN.     See  also  BAILEE. 

defined, Ind.  193,  Mich.  352,  N.  Y.  563,  Tenn.  751 

who  deemed, Ky .  255 

a  depositary  for  hire, Ga.     96 

liability  of,  in  general, La.  298 

liability  of,  coextensive  ivith  posses.sion, Mass.  340 

when  the  liability  of  attaches, S.  C.  727 

authority  to  incorporate, Mich.  360 

duty  on  receipt  of  consignment, Kan.  250 

duty  of,  when  property  consigned  to, Wis.  811 

must  keep  a  record  of  all  propert j^  received, 

Kan.  257,  Me.  309,  Mich.  354,  Minn.  375,  Neb.  505 

to  file  monthly  report  with  auditor  of  state, Kan.  234 

who  are,  unthin  meaning  of  warehouse  act, Pa.  689 

must  be  regularly  engaged  in  warehouse  business  to  i.ssue  warehouse 

receipts, Ky.  255 

owe  duty  to  the  public, HI.  161 ,  Ky.  247 

must  give  bond, Minn.  379 

must  file  bond  with  clerk  of  district  court, La.  291 

must  procure  certificate  from  district  court, La.  291 

act  providing  that  they  should  not  be  made  defendants  in  certain 

cases,  held  unconstitutional, N.  Y.  552 

representing  oneself  to  be,  liability, Pa.  690 

what  constitutes  prima  facie  case  against, Miss.  451,  A^.  Y.  565 

assigne  •  of,  assumes  obligations  of, ///.  169 

guilty  of  conversion  if  he  ships  in  a  manner  contrary  to  instructions 

and  loss  follows, TT^'s.  826 

prohibited  from  selling  goods  stored  without  owner's  consent,  Wyo.  832 

liability  for  violations  of  provisions  concerning  tobacco, Ky.  269 

who  are  tobacco  wa'ehousemen, Ky.  267 

state  must  be  party  plaintiff  in  action  for  improper  exercise  of  power, 

Kan.  240 

cannot  lessen  liability  by  change  of  name, Ky.  274 

a  manufacturing  company  cannot  act  as, Ind.  200 


INDHX.  935 

References  to  laws  are  printed  in  roman.     Those  to  dcciniun-H  arc  in  ilalicii. 

WAREHOUSEMEN— Con<m./cd.  ,..v;k 

change  in  ownership  of  warehouse,  irhm  jmrrhnxrr  not  Uahle  for 

misdelivery, \/nj„.  ;j.j-, 

combinations  with  carriers  or  others,  unlawful 111.  HI,  Mo.  401 

when  liable  for  oarryins,  loading,  packinj^  and  \uipackiii;;,  ..N.  Y.  .Vi:! 
duty  of,  Avhen  demand  made  on,  for  property  by  person  not  hold- 
ing receipt, \.  Y.  5(51 

have  lien  for  charges, Ore.  GTS,  Pa.  70(i,  Wyo.  s:i.{ 

extent  of  lien  on  stored  goods, Mich.  S.I'J 

manner  of  enforcing  liens, Ore.  079 

may  retain  goods  until  charges  paid, Mo.   IsO 

must  provide  fire  escapes,  when, .Mich.  305 

when  to  hold  goods  sul)ject  to  order  of  court, .\.  Y.  551 

prohibition  against  sale  of  stored  goods, X.  Y.  559 

penalty  for  fraudulent  disposition  of  property, Mich.  309 

prohibited  from  tampering  with  stored  property,.  .Ind.  1.S9,  Ore.  077 

if  tJiey  contract  to  insure  goods  they  arc  liable  therrfor, Mo.  495 

have  insurable  interest  in  stored  property, Md.  329,  S.  C.  728 

advances  by,  to  depositors, .V.  1'.  574 

lohen  liable  as  carriers, .N'.  1'.  500 

when  they  may  replevj'  goods  after  delivery, .Mich.  359 

dut^f  concerning  grain, Ky.  200 

prohibited   from   mixing  different  grades  of   property   together. 

Wash.  798 
when  not  liable  if  contents  of  packages  are  not  a.s  represented, 

.\".  Y.oOO,  N.D.  022 

not  to  issue  receipts  unless  goods  actually  in  store, Wyo.  S32 

must  give  warehouse  receipts  when  property  recei^•ed Ore.  070 

prohibited  from  selling  goods  unless  receipt  returned, Pa.  G.S9 

need  not  show  precise  manner  of  loss  of  giods Mass.  'MO 

exonerated  by  delivery  to  holder  of  original  warehouse  receipt, 

Wash.  801 

must  keep  full  record  of  all  receipts, I"d.  192 

required  to  furnish  receipt  upon  delivery  of  toljacco  to  them,  Ohio.  041 

may  issue  receipts  against  their  own  property Yu.  77S 

when  may  pledge  grain, Ind.  191 

prohibited  from  hypothecating  property  entrusted  to  them.  ( )hio,  030 
prohibited  from  hypothecating  goods  to  greater  extent  than  ad- 
vances,   l'*'"'>    "•'»- 

embezzlement  by,  penalty, ^^  i**-  '*••** 

at  terminal  points  must  protect  grain  in  cars Minn.  405 

to  have  tobacco  inspected, ^'"-  "'•'*' 

not  lial)le  when  property  taken  from  them  l)y  le.gal  procfiss,.  .  .Pa.  092 

penalty  for  unauthorized  sale  of  property  by *^     .'  ^^ 

must  defend  themselves  at  law  where  title  in  issue .V.  1  .  570 

when  not  liable  for  injury  to  em])loyecs, /W    181 

may   appoint   deputies ^*'''^-  '"^^^ 

carrier  not  entitled  to  license  as, ^-  298 


936  INDEX. 

References  to  laws  are  printed  in  rnrnan.     Those  to  decisions  are  in  italics. 

WAREHOUSEMEN— ConZmwed.  page 

license  revoked  if  guilty  of  negligence, Mo.  470 

WAREHOUSE  RECEIPTS.     See  also  BILLS  OF  LADING;  STORAGE 
RECEIPTS. 

IN  GENERAL. 

defined  by  statute, Ariz.  21,  Wash.  797 

statute  defining,  construed, Wash.  797 

defined,  Cal.     59 

what  is  not, Tenn.  757 

what  two  things  they  rejyresent Ind.   206 

warehousemen  required  to  give, Ala.  1,  Kan.  241 

when  to  be  issued, Ind.  185,  Kan.  228,  Md.  316,  Mo.  464 

when  not  to  be  issued Va.  791 

act  governing  the  issuance  of, 111.  146 ,  La.   290 

statute  requiring  issuance  of,  construed, Ore.  676 

must  be  issued  by  one  regularly  engaged  in  the  icarehouse  business, 

Cal.  59,  Md.  330,  A^.   Y.  596,  Pa.  702,  Wa.sh.  807,  Wis.  828 
issued  by   one  not  warehouseman  and  when  goods  not  stored,  void, 

III.   180 
who  besides  warehousemen  may  issue,  la.  211,  Wash.  797,  Wis.  821 

manner  of  issuing, 111.    132,    La.  292 

classified    by    statute, Cal.    38,    43 

warehouseman's    obligation   upon, ///.   180 

transfer  of  a  symbolic  delivery  of  the  property, Tex.  770 

illustration  of  tvhat  held  not  to  constitute, Md.  317 

form  of, Ariz.  21,  Wash.  798 

issued  for  grain,  form  of, Ky.  260 

need  not  be  in  any  particular  form, Neb.  538 

what  must  be  stated  on, . 

Ariz.  21,  la.  211,  Kan.  228,  Minn.  380,  Mo.  464,  N.  C.  603, 
N.  D.  615,  Okla.  660,  S.  Dak.  733,  S.  C.  716,  Tex.  762,  Va.  779 

what  they  must  contain, Mo.  497 

not  to  be  issued  unless  property  actually  in  store, 

Ala.  1,  Ark.  25,  Cal.  37,  41,  Conn.  74,  Del.  83,  Ind.  186,  194, 
la.  213,  Kan.  227,  Ky.  255,  256,  261,  La.  286,  292,  Md.  316, 
Mich.  355,  Mo.  456,  N.  J.  543,  Okla.  661,  Pa.  688,  S.  C.  716, 
Tenn.  751,  Tex.  762,  763,  Va.  778,  791,  Wash.  798,  Wis.  823,  Wyo.  832 
warehouseman  must  have  pos.^e.%sion  of  property  ivheti  receipt  issxied. 

Pa.  702 

warehousemen  must  give,  upon  receipt  of  property, Ore.  676 

effect  of  issuance  tvhen  goods  not  actually  in  store, N.  Y.  588 

may  be  signed  by  an  agent, Wis.  813 

authority  of  superintendent  to  issue, Ga.  118 

issued  by  superintendent  to  owner  of  a  factory  are  not, N.  Y.  596 

railroad  companies  authorized  to  issue, Ohio,   634 

issuance  of,  when  another  outstanding,  prohibited, Ind.   195 

warehousemen's  duty  in  regard  to, Kan.  229 


iNDKx.  i»;{7 

References  to  law.t  are  imnlcd  in  romnii.     Tluisv  to  ilcrisiunn  an  in  italicn. 

WAREHOUSE  RECEIPTS  in  oknkhal  -Cnlinurd.  vkv.k 

must  he  f^ivou  l)y  tobacco  wareliouscincii  wlicii  tol>iicr(i  delivere*!, 

Ohio,  (HI 

when  distiller  may  issue Ky.  271 

construction  of,  (is  shoiring  wlicllur  traiumrtitm  a  hailmcjil  or  nale, 

Ohio,  040 

written  parts  of  control  prinhd, Minn.  440 

valid  sale  of  part  of  coinmiugUd  grain  Inj  dcliicnj  tif  receipt,.  ..\.  }'.  57S 
where  {z;oods  commingled  warehouse  receipt  to  stand  for  {Xirtion  of, 

N.C.  (503 

title  to  property  passed  by  transfer  of .  .  .  N'.  <".  0()3 

exemptions  in,  will  not  cover  negligence, Minn.  43.S 

required  to  be  surrendered  if  property  taken  under  lo^al  prtK-ess, 

Ala.       2 

penalty  for  disposing  of  without  disdosin};  attachment, Me.  309 

penalty  for  disposing  of  after  attachment, Miu-w.  335 

notice  that  purchase  price  unpaid  must  appear  on,.  .Conn.  SO,  K>j.  281 
issuance   of,   without  knowledge   of  advances  against  the  ftrof)ert]i, 

warehouseman  not  liable, .V.  1'.  595 

the   issuance   of,   with   notice  of  adverse  claim  of  title  corwitilules  a 

conversion, X.  D.    G2.5 

statements  on,  constituting  notice  of  unpaid  purchase  price,.  .  .Minn.  439 

what  sufficient  notice  that  purchase  price  not  paid, Kg.  2S0 

warehouseman  protected  when  he  issues  to  one  having  possession  of 

goods, -V.  D.  024 

issued  in  name  of  one  not  depositor,  effect, Cat.     59 

issuance  to  one  not  the  real  owner, .V.  Y.  5KS 

inquiries  made  by  holder  thereof,  effect, V.  1'.  597 

when  statements  in,  not  a  contract  to  ithsure, Ca.  115 

statements  on,  held  constituting  a  contract  of  insurance Minn.  439 

implied  contract  of  insurance  passes  ivith  assignment  of, Minn.  441 

interpretation  of,  warehouseman's  interest  in  the  goods, ///.  170 

property  deemed  persons  to  whom  receipt  was  issued, Me.  309 

presumptive  evidence  of  ownership, Iiv.  215 

of  private  warehousemen  to  be  so  marked Tex.  70-1 

interpretation  of,  copy  given, Mich.  371 

what  is  not  a  fatal  indefiniteness  in .  .Mich.  373 

conclusive  evidence  of  their  contrnts, Md.  315 

a  contract  not  .'subject  to  be  contradicted  bij  parol 

///.  ISl.  Minn.  444,  Trnn.  75S 

parol  evidence  not  receivable  to  var;/ lo-  224,  A  .  i  .  5S9 

when  parol  evidence  admissible l"-  '-24.  Ann.  253 

parol  evidence  admis.nble  to  shoiv  that  jHri^on  is.'.uing  the  rrrei/rf  acltd 

as  agent, 

if  ambiguous,  parol  evidence  rcceivaldc  to  explain -la.  790 

parol  evidence  receivable  to  explain  term  "rold  .'<lorngc," A.    V  .  59S 

parol  evidence  admissible  to  explain   signature  of  trarehou.Hcmnn. 

Minn.  445 


938  INDEX. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

WAREHOUSE  RECEIPTS  ix  general— Confmwd.  page 

terms  open  to  explanation,  usage, Ind.  207 

description  of  goods  must  be  definite, Ind.   195 

must  state  condition  of  goods, Ala.       1 

what  they  represent  as  to  quality  of  property,  etc., N.  Y.  590 

statements  on,  as  to  nature  of  goods  not  a  warranty, Wis.  829 

effect  of  description  of  contents  of  packages, Wis.  829 

warehouseman  not  bound  by  description  given  on  the  receipt, 

X.  Y.  590,  Pa.  €96 

usual  trade-marks  are  not  distinguishing  marks, Ky.  280 

failure  to  state  brands  and  marks  thereon,   effect, ///.   145,   175 

misdescription  of  grain  in,  of  no  effect  between  the  parties, ....  Minn.  445 

when  brands  and  marks  must  appear  thereon, 111.  144 

to  contain  brands  and  marks, Wis.  821 

must  contain  distinguishing  marks;  nature  of Ky.  283 

must  deliver  ideniical  goods  when  identified  by  brands  and  marks,  R.  I.  713 

bonded  warehouses  must  issue,  contents  of, Ga.     97 

withdrawal  of  goods  from  bonded  warehouse  when  receipt  outstanding, 

K.  Y.  571 
statements  that  liquor  is  in  "free  warehouse"  binding  on  warehouse- 
man,   N.  Y.  591 

must  be  consecutively  numbered, 

Kan.  229,  242,  Minn.  387,  408,  410,  Mo.  4G4,  Neb.  512,  X.  D.  615, 

Okla.   660,   S.  Dak.   733,  Tex.  762 

numbering  of,  from  country  warehouses, Minn.  408 

must  be  returned  before  warehouseman  can  sell  goods, Pa.  689 

charter  provisions  that  liability  should  be  only  such  as  icas  stated  in 

the  receipts,  void, A  .  C.  612 

effect  of  statement  as  to  rate  of  storage, Minn.  440 

holder  of,  must  consent  to  removal  of  propert}-  represented, .... 

N.  J.  544,  S.  C.  717 

must  be  returned  before  surrender  of  foods, Mich.  355 

grain  not  to  be  delivered  unless  receipt  returned, Minn.  382 

delivery  without  return  of,  warehouseman  liable, Neb.  538 

delivery  of  goods  ivithout  return  of,  ivhen  section  of   penal  code  not 

applicable, A'.   Y.  593 

grain  to  be  delivered  upon  presentation  of, Okla.  663 

must  be  surrendered  on  return  of  goods, Ala.  2,  Ariz.     24 

holder  of,  entitled  to  property  on  presentation  of , .  .  .  ^ 

Ariz.  23,  La.  293,  Minn!  388,  409,  Mo.  467,  Tex.  763,  Wash.  799 
goods  not  to  be  removed,  sold  or  incumbered  when  receipt  out- 
standing,     Ky.  256 

selling  goods  wit'iout  consent  of  holder  of,  penalty, S.  Dak.  747 

prohibition  against  sale  of  property  when  receipt  outstanding,  Va.  778 

mu.'it  be  indorsed  to  person  demanding  goods, Ala.     18 

entitled  to  its  return  before  delivery, Ga.  119 

property  to  be  delivered  on  return  of, Kan.   243 

delivery  to  one  not  holding,  burden  of  proof, Miss.  452 


INDEX.  039 

References  to  laws  are  printed  in  ronmn.     Those  to  decmom  are  in  italici,. 
WAREHOUSE  RECEIPTS  iv  c.v.^vM.KW-Conlinucd.  ,.a«jb 

delivery  to  holder  of  ori-iiml,  exoiicnitcs  wan'hoiLs<!tnan,.  .Wai<li.  HOI 

partial  delivery  to  be  indorsed  upon, 

Cal.  3S,  Okla.  fiOl,   Pa.  (Vss,  S.   Dak.  TM ,  WLs.  SIO 

negotialion  after  withdrawal  of  part  of  gowls Seb.  537 

if  goods  1)0  delivered  when  outstanding,  warehouseman  lialAe, 

Ind.    20S,    Ohio,    651 

refusal  to  deliver  ivhcn  receipt  outstatiding, ('al.     0() 

holder  of,  must  jjive  written  consent  before  K<>ods  relea-;c<i  by 

■warehouseman,  Wash.  799 

to  be  surrendered  and  caneelled  wlicn  floods  delivered, 

111.   133,   134,   Ind.   ISC),   Kan.   242,     La.  2S(),   Minn.  :j.S7,   Mo. 

466,  Neb.  513,  X.  D.  623,  Okla.  662,  S.  C.  717,  S.  Dak.  737, 

747,Teiui.   7.')1,   Va.  77s,   WLs.  810 
to  be  marked  "Registered  for  Collection"  when  {irain  tleUvered, 

Neb.  530 

if  cancelled  must  be  so  marked, Kv.  200 

delivery  upon,  without  notice  of  clai?ns, ,V.  1'.  595 

when  rights  or  obligations  of  warehousemen  not  altered  i)y,  Ariz.     24 
liability  upon,  not  to  be  limited  by  any  language  in, 

111.  134,  Kan.  243,  Ky.  262,  La.  293,  Minn.  3S.S,  Mo.  460,  Nelj.  514, 

N.  D.  615,  Okla.  662,  S.  Dak.  733,  Tenn.  752,  Tex.  703 

where  propcrtrj  delivered  bij,  attornment  not  tiecessarij, Mo.  497 

penalty  for  forging  or  altering, Ore.  OSI 

penalty  for  destruction  or  alteration  of Wi.s.  823 

how  far,  factor  or  agent  considered  owner  of  property  represented, 

Me.  30S 

penalty  for  issuing  false,  as  security, Colo.     07 

tenants  in  common  of  grain  stored  in  mass, Minn.  430 

for  grain  in  ma.ss,  what  they  represent, Me.  310 

must  represent  correct,  amount  of  grain Miiui.  410 

misdemeanor  to  falsely  state  grade  or  weight  of  grain  in,.  .  .Minn.  411 

if  grain  stored  in  separate  bin  it  must  so  appear, Ind.  1S5 

possession  of  does  not  necessarily  indicate  ownership  of  goods,  Ma.ss.  348 
notice  to  be  given  holder  of  when  another  demands  the  poo<Ls,  N.  Y.  501 

extension  of  loan  sufficient  consideral  on  for  issnanre Ky.  2S2 

void  if  transferred  pursuant  to  gambling  contract, la.  223 

effect  of  transfer  of  a  gambling  debt. 1/a.     10 

best  evidence  of  title, (tO.  1 20 

must  state  if  cotton  is  exposed  to  weather Tex.  702 

goods  may  be  pledged  by, Coio.     70 

pledge  may  be  made  by  assignment  of La.  295 

by  a  public  ivarehonseman  to  .^pci/rr  his  ow)i  debt, Ind.  207 

warehousemen  may  issue  against  own  goods,  effect Ky.  279 

against  warehouseman's  own  goods,  valid  pledge  by Mich.  373 

pledge  may  be  made  by, Minn.  430 

pledgee  may  dispose  of I^.v-  2''>7 

penalty  for  fraudulent  sale,  or  pledge  of, Va.  792 


940  INDEX. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

WAREHOUSE  RECEIPTS  in  general— Con/ mwed.  page 

by  warehouseman  against  his  own  goods,  not  a, Mo.  496 

must  not  be  issued  against  his  own  goods, Pa.  702 

holder  of    deemed  garnishee,  when, Pa.  691 

division  and  consohdation  of, Mo.  465,  Okla.  661,  S.  Dak.  737 

indorsement  "without  guarantee'^  does  not  release  the  indorser  from 

the  implied  warranties, Neb.  538 

indorsement  of,  by  one  since  deceased, Ga.  1 17 

issued  in  name  of  individual  where  property  belong-^  to  firm, .  .N .  Y .  588 

full  record  of  to  be  kept  by  warehouseman, Ind.  192 

must  be  registered  in  warehouseman's  book, la.  212 

pre-existing  debt  good  consideration  for  transfer, Cal.     59 

rights  and  liabilities  of  warehousemen  not  affected,  by  when.  Wash.  801 
a  receipt  cannot  be  made  a  warehouse  receipt  by  being  signed  by  one 

as   "  ivarehouseman," Wash.  807 

mining  corporation  cannot  issue, Ind.  207 

interpretation  when  ambiguous,  questions  for  jury, ^■a.  794 

pledged  by  warehouseman  as  factor  to  secure  personal  loan, Ga.   118 

in  name  of  warehouseman,  valid  pledge  by, Ala.     15 

goods  may  be  pledged  by, Ga.   112 

to  be  registered  by  party  issuing, Wis.  822 

law  concerning  contents  of,  construed, S.  Dak.  733 

purpose  of  surrender  to  ivarehouseman  erroneous  instruction,.  .  .  .III.  181 

estoppel  by, III.  170,  Minn.  440,  A^.  Y.  591,  Tenn.  758 

estoppel  by,  when  no  notice  thereon  as  to  unpaid    purchase   price, 

Ohio,  652 

when  warehouseman  not  estopped  by  informal  receipt, Minn.  443 

indorsee  estopped  by,  when, Pa    704 

the  discount  of  paper  based  upon,  not  considered  a  loan,  when.  Mo.  487 

forgery  of,  war  houseman  j  rotected, Cal.     61 

penalty  for  fraud  committed  through  possession  of, Neb.  534 

a  receipt  is  ued  by  debtor  to  secure  debt  is  not, Ind.  208 

to  bearer  may  be  transferred  by  delivery, Ariz.     24 

if  issued  in  name  of  warehouseman,  one  who  takes  is  not  a  bona  fide 

holder, A\  1'.  596 

guarantor  who  takes  up  receipt  does  not  thereby  assume   accrued 

storage  charges, N .  Y .  592 

assignee  assumes  all  storage  charges  due, ///.   166 

right  to  surrender  on  acceptance  of  attached  draft, La.  306 

special  agreements  governing  storage  may  be  made Ore.  680 

objection  that,  not  indorsed  to  plaintiff  must  be  made  during  the  trial. 

Miss.  451 

if  lien  on  property  it  must  appear  on  receipt, K5^  256 

by  debtor  against  his  own  goods,  void  as  to  creditors, Ohio,  651 

transfer  of,  passes  all  of  holder's  title, Ariz.     23 

valid  delivery  by, Colo.   71,    Ga.    116 

allegation  of  ownership  of,  held  equivalent  to  allegation  of  ownership 

of  property, Cal.     51 


iNi>i;x.  *,}l 

References  to  laws  arc  printal  in  roman.     Thos^  to  ,Urisu,ns  nr,  ,„  ,„u,cs 

WAREHOUSE  RECEIPTS  in  o^sKn.Ku-Co.iinur.l 

a  valid  tender  may  he  made  by Ill    \H\    \    >'  rn,, 

representing  corn  mcann  marketable  com, '     '    '  \    y  'L, 

title  to  must  be  in  plaintiff, '  ,     ' 

when  not  necessary  to  show  indorsement  to  plainiifj, '.[ '.\"a  14 

when  held  to  be  a  sale  by  mortgage Ill  IT" 

scale  tickets  are  not, /  .    '.' 

sampler's  ticket  not  equivalent  to, j/,'  .  T, 

iveighing  tags  do  not  constitute, .. fVj/  on 

■weighmaxter's  tickets  are  not, ' ' In  >\l 

receipts  issued  by  factors  are  not, Ill  n<- 

of  private  warehousemen,  liow  to  he  marked, i^,/  h^, 

must  contain  a  statement  that  necessary  declaration  has  been  Hlwl,  ' 

I'"'-  H)l,  la.  -JIl,  Wis'.  .S22 

section  of  warehouse  act  to  be  printed  upon j^.,    2«m 

authority  to  sell  goods  implies  authority  to  issue  receipt .      A'v    279 

holder  of  ineffectual  receipt,  may  reach   warehouseman's  assets  in 

hands  of  assignee, ^-      2s4 

is  a  contract  of  bailment, hi  •>07 

penalty  if  holder  fail  to  comply  with  terms  of '    ^,1    319 

penalty  for  fraud  on  part  of  one  havin- made  advances  against  ' 

property  represented, i^j^l    o.g 

transfer  of,  on  day  of  assignor's  insolvency,  valid, Cal.     60 

fraudulent  transfer  a  question  for  jury, f  „/^      7 1 

larceny  of,  indictment,  insufficient  defense Minn.    \\\ 

AS    COLLATEUAL. 

property  must  be  actually  in   store   b  fore   issuance 

Conn.  74,  Mich.  355,  Mo.  4.5G,  X.  J.  .543,  S.  C.  716 

property  not  actually  in  store, ^y^    j  jv- 

when  goods  not  originally  in  warehouse, j(,.    2S2 

statute  j:;overning  issuance  of,  deli\-ery  of  jiroperty  ui>oii,  etc.,  I^.  2S(3 

purchase  price  not  paid,  pledgee  protected fo/o      72 

property  may  be  pledged  by  warehouse  receipt, ]ifo.  497 

affidavit  to  be  filed  in  case  of, I  ji    287 

issued  by  secretary  of  elevator  company,   latter  cstop})cd  to  deny 

^'alidify, /;„,;    330 

examination  of  pledge  by  experts  in  case  of  default La.  2S9 

pledgee  may  maintain  assumpsit  against  warehouseman /?.  /.  713 

penalty,  if  fraudulently  made, Va.  792 

rate  of  interest  on  loans  on, X.  ■\'    ru'y'2 

must  be  paragra})hcd  for  hypothecaiion Im.  305 

the  discount  of  paper  based  upon,  not  a  loan,  when Mo.  4,s7 

not  to  be  issued  and  pledged  by   warehousemen  unlcs.s  he  be  the 

owner  of  the  goods Wvo.  832 

not  affected  by  substitution  of  other  projH-rty  if  unknown  to  pledgee.  III.  179 

lien  lost  if  other  goods  substituted Wis.  ,S31 

when  not  issued  by  a  jnddic  unrehoiisemnn,  ineffectual hta*s.  348 

allowing  property  to  be  removed  when  receipt  outstanding A*.  Y.  594 


942  INDEX. 

References  to  laws  are  printed  in  rotnan.     Those  to  decisions  are  in  italics. 

WAREHOUSE  RECEIPTS— Con^mwed.  page 

effect  of  vendor's  lien  in  case  of, La.  288 

when  pledge  can  be  sold, La.  288 

rights  of  pledgee  in  case  of  default, La.  288 

it  must  be  a  valid  receipt  in  order  to  effect  a  binding  pledge, Wis.  830 

by  warehouseman  against  own  goods,  invalid, la.  213 

when  bank  bona  fide  holder, Pa.  702 

protection  of  pledgee, La.  305 

insurance  policies  to  be  made  payable  to  holder  of  rcceip  , .  .Minn.  430 

in  turn  pledged  by  pledgee,  original  pledgor  protected, Wash.  807 

pledge  by  factor,  what  constitutes  notice, Ala.  18 

factors  may  pledge  goods  entrusted  to  them, Wis.  828 

pledge  made  by  factor,  pledgee  protected, Ohio,  653 

by  factor,  oivner  protected, La.  289,  304 

innocent  pledgee  protected, Ky.  281 

sidt  by  pledgee, ///.  179 

pledgee  may  sell, Ind.  197 

chattel  mortgage  statute  does  not  apply, Wis.  830 

without  indorsement,   effect, Ala.    18,    Ga.  117 

possession  of  receipt  by  warehouseman  evidence  of  fraud, Ky.  283 

when  person  to  whom  issued  has  no  title,  effect, la  224 

taking  ivithout  indorsement,  equities  let  in, Ind.  208 

in  legal  effect  a  sale, ///.  179 

delivery  of  goods  in  settlement  of  antecedent  debt  will  not  def  at  pledge. 

Pa.  703 

national  bank  may  take  warehouse  receipts  as  collateral, Ohio,  654 

pledgee  may  maintain  trover, Wis.  831 

when  title  held  to  remain  in  pledgor, Cal.  56 

issued  against  property  afterwards  sold,  when  burden  on  defendant, 

Minn.  442 

BONA  FIDE  HOLDER. 

protection  of, Ga.   118,   III.    178,   Ky.   283,    Tenn.  758 

of  fraudulent  warehouse  receipt  issued  by  agent,  protected,.  .S.  Dak.  749 
if  receipt  state  government  tax  has  been  paid,  innocent  holder  pro- 
tected,   A-.    Y.  572 

when  bank  holding  as  collateral  is, Pa.  702 

where  no  notice  thereon  as  to  unpaid  purchase  price, Ohio,  652 

protected  where  goods  were  never  in  store, Ky.  281 

protected  where  ivarehouseman  converts  property, Minn.  441 

protected  if  ivarehouseman  deliver  goods  ichen  receipt  outstanding,  Ind.  208 

assignee  for  creditors  is  not, Pa.  703 

one  who  takes  for  a  prior  indebtedness  is  not, Ky.  281 

one  who  takes  a  receipt  issued  in  name  of  president  of  warehouse 

company  is  not, N.  Y.  596 

one  taking  receipt  for  goods  in  bond  after  one  year,  is  not, N.  Y.  571 

who  is,  a  question  for  the  jury, Neb  538 

may  maintain  action  against  purchaser  of  whiskey  sold  for  storage 

charges, Tenn.  758 


INI.KX.  043 

References  to  laws  are  printed  in  roman.     Those  to  decisions  arc  in  italics. 
WAREHOUSE  RECElPTS-CoH/ini«c/. 

DUPLICATES. 

must  be  so  marked, 

Ariz.  24,  Conn.  75,  Ind.  185,  Kan.  229,  212,  Ky.  2G0,  La.  292, 
Mich.  355,  Minn.  3S7,  410,  Mo.  457,  Mont.  502,  N  J  SI-? 
N.  Y.  560,  X.  D.  622,  Okla.  060,  Ore.  67(5,  Pa.  6S9,  S.  C.  717^ 

S.  Dak.  747,  Tenn.  751,  Tex.  76J,  Va.  77s,  791,  Wa.sh.  798 

effect  of  issuance  of, j^      <y^, 

when  warehouseman  must  issue  two  duplicate  receipts, ,\riz.     24 

issuance   of,    prohilnted, 

Ark.    25,  Cal.    42,   Colo.    67,  Ky.    256,  Wyo.  832 

title  remains  in  holder  of  original, Cal.  50 

conditions  under  which  they  may  I)e  is.sued,  Del.  84,  La.  287,  Md.  317 

issuance  of,  constitutes  ac'.ual  frattd, 7v ,,    2K5 

may  be  issued  in  any  number  provided  so  marked, Wiush.  801 

counsel  fees  recoverable  in  an  action  caused  by  issuance  of A'l/.  2S5 

warehousemen  entitled  to  security  l)efore  issuance, Tc.\.  762 

issued  innocently:  good  defense  for  icarehouseman , Ohio,  655 

when  issuance  of,  prohibited, Md.  317 

FRAUDULENT. 

false  or  second  receipts,  liabilitj^  upon, \l;i.       3 

issuance  of,  a  crime, 

Ariz.  22,  Cal.  45,  Colo.  67,  III.  127,  145,  1.57,  Ind.  190,  195, 
la.  218,  Me.  312,  Mass.  335,  Mich.  369,  Miim.  380,  Mo.  466, 
Mont.  501,  Neb.  508,  524,  533,  N.  Y.  559,  X.  D.  621,  Ohio,  636, 
Okla.  662,  Ore.  676,  681,  S.  Dak.  746,  \&.  780,  Wash.  803,  Wi.s. 

819,  826 
penalty  for  forgery  of  signature  of  warehouseman  or  indorsor, 

Ma.s.s.  33,'> 

if  through  error  no  penalties  incurred, .\font.  501 

when  bailor  protected  in  case  of  fraudulent  issue  of, fin.   116 

effect  of  inquiries  made  by  holder, ,V.  }'.  5<J7 

issued  by  president  of  warehouse  company  in  his  own  name,.  ..V.  }'.  596 

pledge  by,  ineffectual, I'a.  698 

pledgee  taking,  protected, Kan.  230 

receipts  are  fraudulent  unless  they  truly  reprc-^cnl  i>ro}>crty ///.   I  SO 

holder  of,  cannot  maintain  replevin, H'l'.v.  S3I 

lien  on  goods  not  /o.«./  b]/, ///.   \(M\ 

ivarehousemen  estopped  by,  xvhen, S.  Dak.  719 

LOST  OR  DESTROYED. 

rights  of  owner, Pa.  693 

action  of  court  in  case  of, Pa.  691 

bond  to  be  given  in  case  of, Pa.  094 

how  delivery  to  be  made  in  case  of Va.  779 

conditions  of  bond, Pa.  095 

costs  and  counsel  fees  to  be  paid  i)y  petitioner Pa.  095 

what  not  an  admission  in  case  of, Ga.  120 

warehouseman  may  be  compelled  to  deliver, Ca.  119 


944  INDEX. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 
WAREHOUSE  RECEIPTS— Con/ inwed.  page 

NEGOTIABILITY 

extent  of,  defined, Wis.  830 

defined, Wis.  820 

effect  of  assignment  of, la.  212 

statute  construed, Wash.  800,   Wis.  830 

declared  so  by  statute, 

Ala.  2,  Ariz.  23,  Ark.  26,  Cal.  38,  Colo.  63,  Conn.  75,  Del.  83, 

Ind.  189,  194,  Neb.  507,  Wis.  813 

declared  negotiable  and  that  holder  has  lien, Neb.  507 

transferee  deemed  owner  of  the  property  represented, 

Me.  309,  Mass.  333,  Minn.  382,  Neb.  524,  N.  J.  545,  Okla.  677, 

Pa.  688,  S.  C.  718,  Wash.  800,  Wis.  816,  820 

held  to  be  negotiable  paper, Kan.  230,  Wis.  828 

indorser's  liability  same  as  one  ivho  indorses  bill  of  exchange, .  .  .  .Ky.  281 

same  as  bills  of  exchange, 

Kan.   230,   Ky.   255,   La.  293,  Md.  315,  Mo.  457,  Tenn.  752, 

Tex.  763,  Wash.  800 

delivery  of,  equivalent  to  delivery  of  property, 

Ark.  32,  Conn.  80,  Ga.  116,  Ky.  2S0,  La.  304,  Minn.  441 
conveys  clear  title  as  against  all  claiming  subsequent  to  its  issuance, 

Wis.  822 

to  be  negotiable  in  form, Mass.  333,  N.  C.  603,  S.  C.  716 

if  drawn  to  bearer  it  passes  by  deliver}', Wash.  800 

effect  of  notice  to  vendee  or  pledgee, Wis.  828 

may  be  negotiated  regardless  of  form, Okla.  676 

what  an  indorser  warrants, Mich.  354 

assignor  of  receipt  not  liable, III.  178 

suit  by  assignee, III.  177 

when  custom  ivill  not  control, Ala.     20 

any  printed  or  written  conditions  on,  declared  void, Mo.  457 

how  transferred, Mo.  458 

scale  tickets  are  not, la.  223 

by  private  warehousemen,  quasi-negotiable, III.  174 

if  issued  by  private  warehouseman  against  ou-n  good^,  are  not,.  .Ind.  208 

are  nogotiable  unless  marked  '^non-negotiable," Cal.     59 

to  be  marked  "negotiable," Va.  778 

all  rights  of  original  assignor  pass  to  assignee, ///.  177 

are  not  negotiable  unless  declared  so  by  statute, Ore.  684 

any  law  or  rule  of  board  of  trade  affecting,  not  impaired  by  ware- 
house act, Wis.  824 

are  not  negotiable  instruments, 

Ala.  16,  III.  177,  .V.   Y.  ,592,  Ohio,  653,   Tex.  770 

not  negotiable  within  meaning  of  mercantile  law, Ore.  685 

full  negotiability,  quaere, Conn.     81 

payees  and  indorsers  may  maintain  action  as  in  case  of  bill  of  ex- 
change,   Wis.  814 

may  be  transferred  by  indorsement, 

111.  144,  Mo.  466,  Okla.  662,  Va.  778 


INDKX.  94^ 

References  to  laws  are  irrintcd  in  roman.     Those  to  drcimom  are  in  Ualics. 

WAREHOUSE  RECEIPTS,  niogotiah.litv-C'«»/<»«.J.  ,.;,„« 

there  must  be  both  indorsement  and  ddivcrij, 3/„.  .|«j(} 

although    negotiable    in  terms  it    is  merely  the  reprcscnlalive  nf  the 

properly, ,;,,^^    .^^^ 

warehouseman  becomes  bailee  of  each  transferee, [rk      32 

from  bonded  warehouses,  title  passes, Ga.     98 

only  pass  interest  of  holder, W'a^ih.  807 

transferee  takes  vendor's  title, H',-^    j^29 

requisites  of  negotiability  qyrior  to  warehouse  act, Ore.  684 

transfer  without  indorsement  good  between  the  parties, Miss.  452 

serves  only  to  ward  off  any  defenses  warehousemen  may  have, ....  Ky.  280 

bona  fide  holder  of,  protected, Tcnn.  758 

bank  holding  as  collateral  a  bona  fide  holder,  when, I'a.  702 

procured  throvgh  fraud,  innocent  purchaser  protected, \la.     17 

innocent   holder   protected, /v  y.  2S1 

delivery  when  receipt  outstanding,  penalty, S.  Dak.  748 

warehouseman  entitled  to  bond  in  case  of  garnishmenl (]a.  G97 

when  owner  of  goods  protected  though  receipt  in  hands  of  third  person. 

Mo.  490 
one  holding  receipt  protected  although  depositor  was  not  true  owner, 

Md.  329 

purchaser  of  receipt  must  exercise  ordinary  prudctwe, Minn.  442 

transfer  vests  title  in  the  transferee, .V.  }'.  591 

transfer  the  same  as  bill  of  lading, Cal.     02 

NON-NEGOTIABLE. 

to  be  so  marked, 

Ala.  2,  Cal.  38,  43,  Colo.  03,  Conn.  75,  Del.  S3,  Ga.  97,  La.  293, 
Mass.  333,  Mich.  354,  Minn.  382,  Mo.  458,  X.  C.  003,  Pa.  688, 

S.  C.  716,  S.  Dak.  74S,  Tenn.  752,  Tex.  703,  Wi.s.  820 

assignment  of  not  effectual  until  recorded, Mass.  333,  S.  C.  718 

issued  to  carrier,  latter  not  liable  for  storage  chagres,  irhcn,.  ...R.I.  712 

facts  constituting  insufficient  notice  of  pledge, Pa.  098 

vendor's  lien  preserved, Mo.  492 

delivery  must  not  be  made  except  on  written  order  of  person  to 
whom  receipt  was  issued, Cal.     38 

WAREHOUSE  REGISTRAR, 

appointment  of, III.   1.'17 

daily  statements  to  be  made  to, 111.  134,  Neb.  514 

WAREHOUSE    SITES, 

procedure    to   obtain, S.  Dak    74 1 

applicant  for,  to  file  petition, S.  Djik.  7J2 

summons  to  issue  in  action  to  acquire, S.  Dak.  743 

amendment   of   petition   for, S.  Dak.  742 

issue  to  be  tried,  what  limited  to, S.  Dak.  744 

railroad  commissioners  to  select,  when  and  li<>\v S.  Dak.  711 

trial,  jurors  and  pleadings  iu  an  action  to  acquire, S.  Dak.  74o 

60 


9i6  INDEX. 

References  to  laws  are  printed  in  rornan.     Those  to  decisions  are  in  italics. 

WAREHOUSE  SITES— Continued.  pacxE 

jury  may  view  the  premises,  when, S.  Dak.  744 

duties  of  board  of  appraisers  when  land  condenmed  for,.  .S.  Dak.  744 

pay    of    appraisers, S.  Dak.  746 

damages  to  be  paid  where  land  condemned, S.  Dak.  745 

tender  of  damages,  how  made, S.  Dak.  745 

extension  of  lands  condemned, S.  Dak.  744 

costs  of  condemnation  to  be  paid  by  applicant, S.  Dak.'  746 

verdict  of  jury  in  action  to  acquire, S.  Dak.  744 

compensation  to  be  paid  for  to  railroads, S.  Dak.  742 

WARRANTIES, 

that  warehouse  is  frost  proof, N^.  Y.  587 

statements  as  to  "fire  proof"  must  be  in  contract  in  order  to  constitute, 

Ala.  15 

false  advertisements  as  to  manner  of  construction  of  warehouse,  N.  Y.  587 

indorsement  of  warehouse  receipt  "without  guarantee,"  effect,.  .Neb.  537 

by  an  indorser  of  a  warehouse  receipt,  extent  of, Mich.  354 

WATCHMEN, 

warehouses  must  be  watched  in  a  manner  proportional  to  the  risk, 

Tenn.  753 
question  as  to  what  is  adequate  protection  one  for  the  jury,.  .  .  .N.  Y.  581 

testimony  showing  intoxication  of,  receivable, Mass.  347 

when  presence  of,  necessary  to  the  exercise  of  due  care, Md.  327 

WATER.     See  LOSS  BY  WATER. 

WEEK, 

depositary  entitled  to  one  week's  storage  for  any  fraction  thereof, 

Cal.     36 

WEIGHING, 

of  leaf  tobacco, Va.  793 

manner  of  weighing  tobacco, Va.  782 

charges  for  weighing  cotton  fixed  by  statute, S.  C.  725 

WEIGHING  OF  GRAIN.     See  also  GRAIN. 

requirements  as  to, 111.  126 

state  weighmasters  to  have  control  of, Minn.  393 

appointment  of  weighmasters,  111.  156,  Minn.  393,  Mo.  478,  Neb.  530 

weighmaster,  qualifications,  bond  and  compensation, 

111.    157,    Minn.    394,    Neb.  531 

duties  of  weighmaster, 111.  156,  Neb.  530 

board  of  transportation  to  adopt  rides  for, Neb.  531 

fees  to  be  paid  state  weighmaster,.  .  .  .111.  156,  Minn.  394,  Neb.  531 

compensation  of  weighmasters, Mo.  480 

weighmasters  must  give  bond, Mo.  480 

all  grain  to  be  weighed  on  receipt, Neb.   519 

weighmasters  to  furnish  certificates  of  weights, Minn.  401 


INDF-X.  947 

References  to  lawn  are  printed  iti  roman.     Those  to  dfcmorut  are  in  ilaitcM. 

WEIGHING  OF  GR\m— Continued.  v.kc.k 

certificates  of  weif^limasters  prima  jacic  eviilciuc, Miim.    101 

weighmasters  to  keep  accurate  accounts  of  all  weinhinn,.  .  .  .Minn.  400 

interference  with  state  weigh ma-ster  or  lussistants,  penally 

111.   157,   Mich.   391,   Neb.   r.3l 
penalty  for  fraudulent  weighing, Mo.   ISO 

WEIGHING  TAGS, 

held  not  warehouse  receipts, Cnl.     (V) 

WEIGHMASTERS.     See  WEIGHING  OF  GRAIN. 

WEIGHMASTER'S   TICKETS, 

not  warehouse  receipts, la.  2l\ 

WEIGHT, 

warehousemen  not  responsible  for  natural  loss  in  weight  of  tobacco. 

Mo.   LSf) 
weight  per  bushel  of  various  commodities  fixed  by  law .Minn.  421 

WEIGHTS  AND  MEASURES, 

laws   pertaining   to, Minn.  421 

standards  of,  to  be  provided, Miim.  421,  S.  Dak.  739 

penalty  for  using  not  proved  and  sealed, Mimi.  422 

neglect  to  procure  standard,  penalty, Minn.  422 

action  against  sealer,  how  instituted, Minn.  423 

"WESTERN  TOBACCO," 

what  sampler's  receipt  to  state  in  case  of, Va.  7S2 

to  be  so  branded, ^  •'•  "•**"^ 

WHARF, 

when  inspector  of  tobacco  to  have  control  of, .'SU\.  32.''i 

liability  where  goods  placed  upon  rotted  ivharj, H  ash.  .S07 

WHARFINGER, 

liable  where  goods  lost  due  to  being  placed  on  rotted  wharf U  n.-^h.  K07 

in  absence  of  state  wharfinger,  inspector  of  tobacco  has  control  nf 
wharves, ^''^    ^'^'^ 

WIFE, 

delivery  to  wife  of  bailor  on  forged  order,  bailee  liable, \    K  rtC^n 

WILLFUL, 

violation  must  be  shown,  before  recovery  of  exemplary  damages,,  .la.  214 

WILLMAR, 

declared  to  be  a  terminal  pomt •^''""-  •••™ 

WINONA, 

made  a  terminal  point ^''»"-  •»"* 


948  INDEX. 

References  to  laws  are  printed  in  roman.     Those  to  decisions  are  in  italics. 

WITHDRAWAL, 

of  spirits  through  fraud,  permit  void, Mass.  342 

WITNESSES, 

may  be  subpoenaed  bj'  railroad  commissioners, S.  Dak.  734 

may  be  subpoenaed  by  board  of  railroad  and  warehouse  commis- 
sioners,   111.    154,    Mo.    477 

may  be  subpoenaed  by  board  of  transportation, Neb.  526 

may  be  subpoenaed  by  board  of  commissioners, Okla.  672 

WORTHLESS    PROPERTY.     See  also  UNCLAIMED  PROPERTY. 

disposition  of, Mass.  338 

warehousemen's  duty  in  case  of  storage  of, N.  C.  606 


LAW  LIBRARY 

UMVERSITY  OF  CALIFORNIA 

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